Two People Claiming the Presidency: Part Two
As a general matter, constitutions are left vague and flexible. But presidential disability and succession rules are no places for that. They should be certain and swift—there should never be doubt about who the president is at any given moment.
Unfortunately, one part of the Twenty-Fifth Amendment is easy to misread, and could lead to a serious problem. No, I’m not talking about the typo in the amendment (ten points to the first commenter who spots it). I worry about something more harrowing. Consider this scenario that opens Chapter 3 of my upcoming book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies:
Frances Philips is halfway through her second term as president. Her management style, which was always “hands off,” has become downright lax. She skips meetings, neglects decisions that need to be made, and shows little interest in being president. Some members of her cabinet and staff worry that she is clinically depressed, but—swayed by the increased power that comes with having a figurehead for a boss—none of them does anything about it.
Then President Philips starts alternating her periods of utter inertness with bursts of aggressive and arbitrary micromanagement. At a cabinet meeting, she rants for ten minutes about the use of blue pens instead of black ones. Next, without explanation, she announces that she is killing a carefully developed policy initiative in which she had previously taken no interest.
Several cabinet secretaries become convinced that the president is unable to perform her job. They start to discuss Section 4 of the Twenty-Fifth Amendment, which allows the vice president and a majority of the cabinet to declare the president “unable to discharge the powers and duties of [her] office,” and transfer power to the vice president. Crucially, though, Vice President Merrick opposes the effort. Although he worries that President Philips’s mental condition is deteriorating, he is reluctant to lead what could be perceived as a coup.
Things come to a head when war unexpectedly breaks out in the Middle East. After hearing the initial reports, President Philips paces in the Oval Office, muttering to herself but issuing no orders and taking no action. After several excruciating hours pass like this, Vice President Merrick has had enough, and he gathers the cabinet to file a Section 4 declaration. He is joined by a solid majority: eleven out of fifteen cabinet members.
President Philips is blindsided, but her chief of staff Tom Cooper (who Merrick erroneously thought would support the Section 4 declaration) is not. When Philips asks what her options are, Cooper reads to her from Section 4: if the president sends a counter-declaration to Congress that “no inability exists,” she can “resume the powers and duties of [her] office.” Cooper notes, however, that Section 4 allows the vice president and cabinet to reassert the president’s unfitness within four days, sending the matter to Congress for a final decision, and giving power to the vice president in the meantime.
With renewed focus, Philips executes Cooper’s plan. First, she signs a letter declaring herself fit and transmits it to Congress. Next, she summons the cabinet and addresses the eleven mutinous members: “If you don’t think I can discharge the powers and duties of my office, watch this. You’re fired.” Finally, she replaces them, naming eleven of her most trusted subordinates as acting cabinet secretaries.
In response, Vice President Merrick rallies the old cabinet, and he and the original eleven challengers sign a second declaration of Philips’s disability. Merrick claims that Philips has misread Section 4: Philips never retook power, her firings are invalid, the second disability declaration is valid, Merrick is the acting president, and Congress must now step in. Unfortunately, as advised by Chief of Staff Cooper, Philips refuses to back down. She says that she is in control, with the unanimous support of the “legitimate” cabinet, and that Congress has no basis to act.
The nation is in crisis. There are two presidents and two cabinets. The situation in the Middle East is spinning out of control, and nobody knows for sure who the rightful commander in chief, secretary of state, and secretary of defense are. Congress assembles while dueling sheaves of legal pleadings and memoranda flood the federal courts.
There is no question that the president’s interpretation is wrong in this scenario. The legislative history is as clear as legislative history can be. But my chapter gives some reasons to worry about misunderstandings here:
[I]n any Section 4 dispute, tensions would be high and time would be of the essence. In quieter times, the administration probably would have prepared Twenty-Fifth Amendment contingency plans, but in an internal struggle like this any such plans could go out the window. The plan would likely focus on direct issues (like assessing medical evidence) anyway and provide little guidance on the arcane constitutional wrinkles at the heart of this chapter. For the unschooled players at the heart of the controversy, the text of Section 4 would be the easy and obvious place to look for answers. The legislative history would not be.
As an example of how limited knowledge can be, and how hard it can be for law to be followed in a crisis, consider the immediate aftermath of the shooting of President Reagan in 1981. The administration was unprepared to discuss transferring power, and “the men gathered in the Situation Room [did not] know what action they were authorized to take or expected to take.” Away from the White House (and to no effect), lawyers in the Justice Department studied the legislative history of the Twenty-Fifth Amendment as President Reagan was in surgery. Reagan’s White House counsel subsequently prepared a formal disability plan—something all administrations since then have done as well—but nothing is guaranteed. In our case, even though lawyers somewhere in the administration might study Section 4’s legislative history, the president’s inner circle might not rely on (or even trust) those lawyers any more than they did in 1981.
In the chapter, I provide multiple examples of people in reputable positions who misinterpreted Section 4 the way my hypothetical president did.
Aside from the specifics of this “constitutional cliffhanger,” I think that it is very interesting that even with all of the incentives to draft the amendment carefully, and all of the care that the drafters actually took, this still slipped through. Earlier versions of the amendment were phrased much better on this point, leaving no doubt about who was in charge. Then it got changed to the current version. Part of the reason: this was during the 1960s, perhaps the high-water mark for confidence that a statement of legislative intent would be consulted by courts as though it were part of the final text.
There are some easy solutions here. While presidents cannot bind their successors, they and their legal staffs could do more to ensure that the proper interpretation of Section 4 is well known to anyone in a position to invoke it. My book won’t be out for a little while, but it is nearly finalized. In other words, there is plenty of time for the key players here to do the right thing, and mess up my book in ways that would be expensive to fix. It’d be worth it, though.