Recently, Yale Law School professor E. Donald Elliott, a first-rate lawyer and regulatory expert, wrote in TAS that a little-known provision in the 25th Amendment can be used to swiftly toss the sitting president and vice president, and replace them with competent, trusted leadership for the remainder of the Biden-Harris term. The provision, in the Amendment’s involuntary disability paragraph, sec. 4, contains the following sentence, the last 11 words of which one might call section 4’s Emergency Clause:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide.… (Emphasis mine.)
In support of his idea, he argued: Most voters, across the political spectrum, see Biden and Harris as manifestly unable to govern — the former clearly beset by cognitive deficiency; the latter — like many vice presidents — chosen for political appeal, despite lacking basic issue knowledge or executive ability. Hence, Congress should call upon Biden and Harris to both resign voluntarily. If either or both refuse, Congress should activate section 4’s Emergency Clause, and schedule a plebiscite. The House and Senate should each vote by simple majority for a recall election, asking a majority of the electorate to vote that neither is capable of discharging the “powers & duties” of their respective offices, and to replace them with a caretaker national unity government. If a majority votes to recall both, Congress would pick two replacement leaders who are trusted by both sides. An illustrative example Professor Elliott offered was to have top Democrat Leon Panetta serve as president, and respected Republican Robert Gates — who served in the Bush 43 and Obama cabinets, to serve as Panetta’s vice president. Other respected figures could well fill the bill.
The genesis of this Emergency Clause was during the debates on presidential succession in the Eisenhower administration. Whether to craft either a Constitutional or statutory provision to remedy what was by then universally regarded as a gaping hole in the collection of laws — in the text of the Constitution and laws that Congress enacted — governing presidential succession.
In a series of five TAS articles published last fall I examined presidential succession in detail: Part I, historical antecedents; Part II, 25th Amendment genesis; Part III, 25th Amendment implementation today; and Part IV, possible first-ever use of the 25th Amendment’s involuntary presidential disability provision — focusing mostly on Constitutional issues, dipping down into legislative enactment (in legal shorthand parlance, “statutory”) issues only when necessary. Finally, I discussed problems for today’s situation, created by flawed presidential succession statutes. What follows in the next two sections is a summary extracted from my five articles.
Presidential and Vice-Presidential Disability, 1789-1965. By 1965, when Lyndon Johnson was sworn in for his full presidential term, there had been seven presidencies terminated by death — William Henry Harrison (1841), Zachary Taylor (1850), Abraham Lincoln (1865), James Garfield (1881), William McKinley (1901), Warren Harding (1923), Franklin Roosevelt (1945) — by eerie coincidence, six of the seven were originally elected in a year divisible by 20. Ronald Reagan, first elected in 1980, narrowly escaped the “20” jinx in 1981, breaking the spell.
The two most notable presidential disabilities were those that struck James Garfield (1881) and Woodrow Wilson (1919-1921). Garfield’s illness lasted 80 days, from being shot July 2, until his death September 19. Wilson’s was far more consequential, his massive stroke coming in the midst of his two biggest fights: (a) win ratification of the Versailles Treaty that he had negotiated in Paris with the European members of the Big Four; (b) his push for the U.S. to join the nascent League of Nations. He failed on both counts. Many regard first lady Edith Bolling Gault Wilson as the first — albeit de facto — woman president; she headed a triumvirate that from behind the scenes ran the executive branch for 18 months, from Wilson’s September 25, 1919 stroke until Warren Harding was inaugurated March 4, 1921.
And as if all that were not enough, from April 30, 1789 to January 20, 1965 the vice-presidency was vacant, either by death or illness, 37-1/4 years — roughly one-fifth of the time. As vice-presidencies were derisively regarded as a useless appendage for much of that time, it did not seem to matter. But when Harry Truman, largely unknown to the public, succeeded to the presidency in 1945, HST was woefully unprepared to assume the Oval Office. FDR had neglected to brief Truman on the Manhattan Project, then nearing its goal of producing the world’s first atomic bombs. The war in Europe was less than one month from V-E Day; V-J Day in the Pacific was 4-1/2 months away. And it was this untried vice president who, now in the Oval Office, had to decide whether to unleash upon Japan the moist lethal weapons ever created.
Fortunately for America — and the world — Truman rose magnificently to the occasion, ending the most destructive war in world history, and then meeting the Soviet challenge at the start of the Cold War. Winston Churchill later told HST:
I loathed your taking the place of Franklin Roosevelt.… I misjudged you badly. Since that time, you more than any other man, have saved Western civilization.
The Push for Succession Reform, 1956-67. Thereafter, it occurred to many that the next time in a crucial turn of history presidential succession was uncertain, or a vice-presidential vacancy left unfilled, America might not be so lucky.
It was President Eisenhower himself who pressed for a solution to the problems of succession, after his 1955 heart attack. Then, on November 25, 1957, Ike suffered a paralyzing stroke. Thinking he would not survive, he asked his chief of staff to alert the vice president; Nixon was told that he might be president in 24 hours. But Ike rallied, and was back at work in one week. The effort for reform, led by his attorney general, came to naught, for want of agreement on how to deal with the myriad complexities attending presidential involuntary disability. The 1960 presidential campaign saw a contest between two able men in their forties, and a sense of crisis gone.
Circumstances dramatically and tragically changed on Nov. 22, 1963, with the shocking assassination of JFK, a president in the apparent prime of life (his many serious health problems concealed from the public with the acquiescence of the press corps of the time). Lyndon Johnson took office determined to find solutions to the problems of presidential and vice-presidential succession. From LBJ’s inauguration on Jan. 20, 1964, it was to be just over three years to the 38th state ratifying the 25th Amendment.
Spurred by urgent necessity, in the aftermath not only of the JFK assassination, but also in the wake of the 1962 Cuban Missile Crisis, when the world was poised on the precipice of possible nuclear war, the best legal, political, and medical minds were assembled to find a solution. Those advocating a legislative remedy touted the great flexibility that would enable rapid resolution of a succession crisis. But such flexibility gave much room for political mischief, and politicians, like Oscar Wilde, notoriously can resist anything but temptation. Conversely, while encasing the succession process in a Constitutional amendment would ward off opportunistic mischief, that risked leaving no quick solution if the text did not expressly cover a particular set of circumstances.
The compromise reached in 1964 was to add the Emergency Clause language to section 4 of the 25th Amendment. In doing so flexibility was introduced and, inevitably, commensurate opportunities for expedient political exploitation. Supporters of the 25th conceded this, but added that absent some sense of civic virtue during a crisis, no free republic could survive. An overwhelming majority of both Houses of Congress decided that the gravity of the crisis would likely induce gravity of civic purpose.
In his 1968 memoir, One Heartbeat Away, Birch Bayh, who led the Senate effort to adopt the 25th, recalled how President Eisenhower said that those considering presidential succession crises must assume that the necessary civic purpose would bring forth “men of honor, men of integrity, men whose concern is the welfare of their own country and not of their own personal ambitions.”
Can a Recall Election Realistically Be Held? The Crisis of 2022-2025. Only 14 months into the Biden-Harris term, we find ourselves transformed into a nation that reels from banana-republic inflation whilst sliding into stagnation — the worst stagflation in 50 years; that sees “woke” district attorneys aid criminals while undercutting the police, and an attorney general who regards activist school parents opposing teachers’ unions as domestic terrorists; that traded a secure southwestern border for an open-border welcome mat for unvaccinated economic migrants and massive lethal drug smuggling by the cartels; that traded energy independence for the first time in 70 years, for importing oil and gas provided by Russia (just halted) and Iran; that faces an emboldened China determined to replace Pax Americana with Pax Sinica, as our military atrophies from the twin constraints of omnibus budget limits and 30 years of continuous oversees operations. Most sinister of all: Washington labels opposing views “misinformation” over which it asserts, in league with “woke” tech oligarchs and mainstream media allies, the right to censor the views of political opponents. George Orwell, call your office.
Accepting the premise that a recall of the current administration is needed, there is a need for procedural and substantive policy safeguards, if the recall proposal is to have any chance of passing. The first set covers limits upon those who accept a caretaker role.
National Unity (NU) Procedural Prerequisites: Six safeguards must be implemented to minimize the prospect that a caretaker government seeks to exploit an emergency by enacting permanent legislation:
The second set covers limits upon what those caretakers can do:
NU Substantive Prohibions —“must NOT” — Pre-Empt Matters Properly Reserved for the Voters or those elected by them:
Bottom Line. In my TAS article on statutes governing presidential succession, I called those laws “a ticking time bomb.” With Russia’s invasion of Ukraine, its brutal ruler obsessed with recovering all the territory surrendered by the former Soviet Union at the end of 1991, the Presidential Succession Time Bomb has just exploded.
Therein I wrote, of our deepening partisan division:
The state of near open civil war that prevails today precludes bipartisan cooperation — especially given one-party control of the White House, Senate, and House of Representatives. It will take electoral outcomes that alter the balance of power, in order to make possible considering change. . . .
What makes today’s partisanship so dangerous and obstructive is that the divide is not simply over policy. It is over the very structure of government and the balance between governmental power and individual rights — with rising claims of selective group rights for currently favored constituencies.
No recall can happen before the November elections. It will take landslide GOP sweeps in both the House and Senate for it to begin. Yet while that will stymie the Biden administration’s legislative program, and force less partisan judicial appointments, the main administration response will be a broader attempt to govern by executive fiat. Most of these initiatives will ultimately lose in the federal courts, but the administration already has openly stated that it will implement policies struck down in the federal courts, until the appeals process is complete, so as to create faits accomplis that cannot easily be undone by a new sheriff in town.
We can live with — however reluctantly — those expedient workarounds. What we should not risk is living with a moribund administration living in its Beltway Bubble, as a raging Vladimir Putin threatens World War III over Ukraine, including possible use of nuclear weapons, not only against Ukraine, but also NATO countries, including the United States, if his aggressive designs are stymied. Ditto Chinese dictator Xi Jinping, who ardently desires to force Taiwan back into China’s orbit, waging war if necessary. And ditto to Iran’s mullahs, who pine for a nuclear weapon to give them immunity from removal, and redouble efforts to destroy Israel.
There is an adage in business: Never bet the company. Allowing Joe Biden and/or Kamala Harris to continue in office for the next 35-1/2 months amounts to betting the American republic, and all the freedoms it stands for.
John Wohlstetter is author of Sleepwalking With the Bomb (Discovery Institute Press, 2d. ed. 2014).
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