The Dilemma of Thomas Marshall

120px-Thomas_R._Marshall_in_his_Senate_office_croppedA theme that I’m thinking about exploring in a future work is the unsuccessful resolution of constitutional crises.  We focus on the people who raise their game at these times (the Framers, Abraham Lincoln, etc.), but perhaps we would learn more by studying folks like James Buchanan.  What was he thinking in 1860 when he did not stop secession?

The best example of this genre is Vice President Thomas Marshall, who was Woodrow Wilson’s #2 when Wilson had his stroke in 1919.  I have a soft spot for Marshall, as he was a Hoosier and is buried near where I used to live.  But he has a poor reputation, since he did not take charge when Wilson became disabled and thus allowed the country to drift at what turned out to be a crucial time (establishing a new international order after WWI).

My initial examination suggests that this account is not correct.  Marshall did lay out a path for taking over the presidency in private conversations with congressional leaders and some Cabinet members.  He said he would do so if there was some declaration by Wilson’s wife and doctor that he was disabled, and/or a joint resolution of Congress saying that the presidency was vacant.  (The “and/or” is important but unclear to me so far.)  Neither came (more on that later) and thus he felt he could not act.

In fairness, Marshall was in a tough spot.  First, Wilson’s wife and doctor did their best to conceal the truth about his health.  Second, Wilson didn’t like Marshall, thus he was less inclined to turn over power than he might have been.  Third, Marshall was concerned about setting a precedent whereby the VP and some Cabinet members could simply oust the President on health grounds.  In the absence of any law or clear guidance, his answer was actually a sensible one.  He wanted some clear (if unorthodox) institutional authority from Congress in the absence of a presidential resignation (temporary or not).  It’s worth adding that there is an allegation that opponents of the League of Nations in the Senate blocked a joint resolution because they thought their chances of defeating the Treaty of Versailles were better with a disabled Wilson in office, though I’m not sure if that is true.

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4 Responses

  1. Joe says:

    Re-watching the John Adams mini-series, it is interesting how multiple VPs presided when counting votes for a presidential election where they themselves was a candidate. You think, e.g., being self-interested, they would let the pro tempore preside there.

  2. Stefan Privin says:

    Marshall was in a very difficult spot. Pre-25th Amendment, Presidential disability was dealt with by the dealt with solely by the Presidential Succession Clause (Article II, Section 1, Clause 6). That clause provided that if the President was removed from office, resigned, died, or became disabled, then “the Same shall devolve upon the Vice President”. The same what? The powers and duties of the Presidency or the Presidency itself? The Tyler Precedent provided that the clause meant that the Vice President became President for the remainder of the current term. Additionally, it wasn’t clear who had the authority to declare the President to be disabled.

    Thus, Marshall was confronted with the situation of possibly replacing Wilson as President. Under the Tyler Precedent, Marshall could not have become Acting President (i.e., temporarily filling in for Wilson). So if Marshall had attempted to be Acting President, even if with Congressional authorization, the legality of such an attempt would have been severely challenged. Thomas Marshall’s dilemma is one of the primary events that lead to the adoption of the 25th Amendment in 1967.

    • Joe says:

      I don’t read the old language as necessarily denying the chance of a temporary disability. The “Tyler precedent” involved what happened when someone “died.”

      • Stefan Privin says:

        The original wording was ambiguous. The Tyler Precedent suggested that whatever “the Same” meant it meant it for each of the listed contingencies (removal, resignation, death, inability). So if the Vice President became President if the President died, then the Vice President would become President if the President was declared to be disabled. The 25th Amendment provides that these situations are not treated the same.