The law: Vice presidential inability: historical episodes that highlight a significant constitutional problem.

Author:Brownell, Roy E., II
Position::Report
 
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In 1985, President Ronald Reagan underwent surgery to remove polyps from his intestine (Bush, 2014, 148). Prior to his being anaesthetized, Reagan transferred presidential authority to Vice President George H. W. Bush under Section 3 of the Twenty-Fifth Amendment (Bush, 2014, 148). (1) While acting president, Bush decided to unwind and play some tennis (Bush 2014, 148; Fitzwater 2000, 356; Koch 2006, 201). However, during his match the acting president backpedaled to try to retrieve a lob, tripped, fell, hit his head on the ground and was knocked unconscious (Bush 2014, 148; Fitzwater 2000, 355; Koch 2006, 201). (2) As Reagan and later Bush press aide Marlin Fitzwater described it, Bush

[had] hit[] his head on the concrete. He did not move. The vice president's physician rushed to the court with smelling salts, put a towel under Mr. Bush's head, and took his pulse. After a couple of minutes, the vice president opened his eyes, shook his head, and slowly raised his body to a sitting position. For at least two minutes that day, both the president and vice president were unconscious at the same time. (Fitzwater 2000, 356)

Bush's daughter describes the incident similarly:

Dad stumbled and fell on his back, bumped his head, and blacked out. The United States may have been without any president at all for a few moments! As he lay on the court not moving, Secret Service agents and a doctor jumped out of the bushes around the court, where they had been covertly watching the whole thing.... The agents drove him up to the house--they wouldn't let him walk--with Dad apologizing for breaking up the tennis game. (Koch 2006, 201-2) (3)

Several years later, the vice president's former military aide Sean Coffey commented glibly on the incident that "[w]e figured out later that at least for a few seconds, [then Speaker of the House] Tip O'Neill was in charge. But we decided not to tell him" (Burke 2010). That, however, was not the case. O'Neill was not in charge. Bush remained acting president, even though he was unconscious. And that reality would have held true, even if O'Neill had been notified of Bush's injury. This is because there is no lawful means of determining whether a vice president (or in this case an acting president) (4) is disabled. (5)

This episode involving Vice President Bush may seem like an anomaly. However, it is only one of a number of incidents involving real or potential vice presidential incapacity dating back over two centuries. These precedents merit examination not only for historical reasons but also for constitutional and legal purposes. This is because, under the Twenty-Fifth Amendment, the vice president plays a central role in the continued functioning of the executive branch.

This article will begin by reviewing the pivotal role the vice president plays under the Twenty-Fifth Amendment. This segment lays out why vice presidential disability is a serious matter. The article will then turn to consideration of historical precedents involving real or potential vice presidential incapacity, the first discussion of its kind in the academic literature. (6) The theme running throughout these episodes is that vice presidential inability is not a hypothetical but a recurrent, real-life issue that cries out for legal redress.

Constitutional Text and Vice Presidential Inability

The Twenty-Fifth Amendment was adopted to help ensure the continuity of executive branch operations. As such, the amendment provides two processes for addressing presidential inability (U.S. Const., XXV amend. sec. 3, 4). Section 3 of the amendment prescribes the mechanism for handling scenarios when the president recognizes or anticipates his own incapacity and is willing to take appropriate action. In this setting, a president may send a declaration to the Speaker of the House and the President Pro Tempore of the Senate alerting the legislative branch to his temporary transfer of power to the vice president, who then serves as acting president until the president notifies the same two officials he wishes to regain his office.

Section 4 of the amendment provides for situations when the president is unable or unwilling to make an acknowledgment of disability. If the president is unable or unwilling to acknowledge his own incapacity, the vice president and a majority of the Cabinet (or other congressionally created body) have authority to determine whether the president can fulfill his duties. The Speaker and the President Pro Tempore are then notified. The vice president then becomes acting president until the president contests this determination, with Congress deciding the issue (at least for the immediate term) if disagreement about the president's health persists. The Twenty-Fifth Amendment, however, makes no mention of how situations involving vice presidential incapacity--either willingly recognized or not--should be handled (Crispell and Gomez 2010, 119; Feerick 2014, 2, 245; Fortier et al. 2012, 25-26; Ronan 2015, 156). Nor does any other provision of the Constitution lay out a process for handling such a scenario. (7)

Article II of the Constitution authorizes Congress to take action in the area of joint presidential and vice presidential inability: "Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President." (8) (U.S. Const. art. II, sec. 1, cl. 6 [emphasis added]). However, Congress has never provided a mechanism for deciding whether a vice president is incapacitated (Amar 2010, 20-22; Cheney 2011, 319-22; Fortier et al. 2012, 25-26; Goldstein 2010, 71-72), and the clause in question offers no guidance of its own. That is why the off-handed comment by Bush's former military aide about Speaker O'Neill becoming president is incorrect. Compounding matters is that the president cannot remove the vice president from office. (9)

The question of how to resolve vice presidential inability is important because, if the vice president cannot carry out his duties, serious problems ensue in three potential contexts. First, there is a situation involving an apparently healthy president and an incapacitated vice president (Amar 2010, 21; Feerick 2010, 935; Fortier 2012, 25). In this circumstance, the Twenty-Fifth Amendment mechanism for deciding questions of presidential inability under Section 4 breaks down since the vice president is indispensable to such a determination (Amar 2010, 20; Feerick 2014, 245; Fortier 2012, 26). If the vice president is incapacitated (either acknowledged or otherwise), he cannot work with the Cabinet or other congressionally created body to make the initial determination as to whether the president is incapacitated (U.S. Const. amend. XXV, sec. 4; see also Amar 2010, 20-22; Fortier et al. 2012, 25).

In such a circumstance problems result even outside a Section 4 scenario. For instance, a president would be unlikely to temporarily hand over power to an incapacitated vice president under Section 3 of the Twenty-Fifth Amendment, potentially hamstringing effective operations in the executive branch during periods of de facto presidential inability (Fortier et al. 2012, 25-26). Furthermore, an incapacitated vice president has the potential to be disruptive to the legislative branch. One could imagine a mentally unbalanced vice president wreaking havoc on the Senate by insisting on presiding and not following Senate rules and practices. (10)

Moreover, an incapacitated vice president coupled with a healthy president could be a problem by depriving the president of an important advisor. The modern vice president, as a fellow nationally elected official, has a perspective he can provide the president that no other executive branch figure can. (11) Furthermore, modern vice presidents are typically assigned important duties by the president (Goldstein 1982, 134-35, 151-66). An incapacitated vice president would be unable to fulfill these duties. While the president could partially remedy this situation by reassigning projects or rescinding or modifying delegations to the vice president, continued erratic vice presidential behavior would undoubtedly be disruptive to governmental operations and an embarrassment to the White House.

Second, if the vice president is laboring under an inability himself, and the president subsequently dies, resigns or is removed, the incapacitated vice president would assume the presidency (U.S. Const. amend. XXV, sec. 1; see also Amar 2010, 22; Fortier 2012, 25-26), leaving the nation saddled with a disabled president and without a vice president to initiate the presidential inability determination process (Amar 2010, 22; Feerick 2010, 935). This could have happened had Bush's head injury been more severe and had Reagan not survived surgery.

Third, a president and vice president could be simultaneously disabled (Amar 2010, 22; Feerick 2010, 935-36). The incapacitated vice president, once again, could not initiate an inability declaration against the de facto disabled president (Amar 2010, 22; Feerick 2010, 935). Simultaneous presidential and vice presidential incapacity is essentially what happened when Bush knocked himself out playing tennis while Reagan was under anesthetic for surgery.

Thus, an incapacitated vice president has the potential to greatly complicate the mechanics of both political branches of government. The likelihood of these scenarios may seem somewhat remote, but as demonstrated by the Bush incident and others discussed below, American history is rife with examples of disabled vice presidents as well as "close calls" that could have easily resulted in an incapacitated vice president. Moreover, the risks involved are enormous, making the problem much in need of examination.

Vice Presidential Inability and Near Misses: Historical Examples

There are several reasons why the political branches have not taken legislative action in the...

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