The Dilemma of Thomas Marshall

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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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.