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11 Student Law. J. 15 (1965-1966)
Presidential Inability and the Twenty-Fifth Amendment

handle is hein.journals/studljer11 and id is 61 raw text is: PRESIDENTIAL INABILITY AND THE TWENTY-FIFTH AMENDMENT By Honorable RICHARD H. POFF United States House of Representatives, State of Virginia IN THIRTEEN YEARS in the Congress, no ex- perience has been so satisfying as the opportunity I bad, in company with Senator Birch Bayh, to help fashion what will most surely be the Twenty-Fifth Amendment to the Constitution of the United States. For more than a century, the question of Presi- dential Inability plagued legal scholars and students and practitioners of government. Because the issue was so complex and so controversial, the problem was neglected or deliberately ignored. Only this year did the Congress undertake active consideration of a Constitutional amendment. Why a Constitutional amendment? WVhy not a statute? Some considered a statute sufficient. In re- cent years, the great body of legal opinion has held that so far as the question of Presidential Inability is concerned, a Constitutional amendment is not only the proper legal course but the wise course. The difference of opinion arose from the language of Article II of the U. S. Constitution, Section I, clause 5, which reads as follows: In case of the Removal of the President from Office, or at his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and the Congress may by law provide for the Case of Re- moval, Death, Resignation, or Inability, both of the President and Vice President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. That language was first brought into sharp focus in 1841 when President William Henry Harrison died in office. Because it was uncertain whether the powers and duties would devolve or the office would devolve, the question immediately arose, Will Vice President Tyler become Acting President or President of the United States? Tyler answered the question by taking the oath of office of President. Since then, the Tyler Precedent has been confirmed seven times. But Tyler's answer concerning succession following death did nothing to clarify the question of suc- cession following inability. Indeed, it complicated that question. Death and inability both are treated in the same clause of the Constitution. Thus, it was argued that whatever should devolve on the Vice President on account of the President's death, would also de-olve upon the Vice President on account of the President's inability; and, if what devolved in one case was the office itself, then it would have to be the office in the other case. The conclusion of this argument was that if the Vice President should assume the office of President on account of the President's inability, the displaced President could not thereafter, even if he recovered, reclaim his of- fice. Such Constitutional scholars as Daniel Webster so declared. In the face of such an argument, it is little von- der that Vice Presidents have been reluctant to assume the mantle of the Presidency, even in the most urgent crises. When, in 1881, President Gar- field lay incapacitated from an assassin's bullet some 80 days, Vice President Arthur would not act. The same was true in 1919 when President Wilson suffered a stroke which rendered him all but helpless. Congress Has Little Authority To Act In these two crises, surely Congress would have passed a statute in Presidential Inability if Congress felt it had the Constitutional authority to do so. There were those who felt that Congress had such authority. They pointed to the necessary and proper clause and to the language in Article II which reads that . . . the Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability . . . DECEMBER, 1965 15

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