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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