• Abstract and Figures
• Public Full-text

Fordham Law Review Volume 86 Issue 3 Article 4 2017 What to Do If Simultaneous Presidential and Vice Presidential Inability Struck Today Roy E. Brownell II Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Recommended Citation Roy E. Brownell II, What to Do If Simultaneous Presidential and Vice Presidential Inability Struck Today, 86 Fordham L. Rev. 1027 (2017). Available at: https://ir.lawnet.fordham.edu/flr/vol86/iss3/4 This Symposium is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. What to Do If Simultaneous Presidential and Vice Presidential Inability Struck Today Erratum Law; Constitutional Law; Law and Politics; Law and Society; President/Executive Department; Legislation This symposium is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol86/iss3/4 WHAT TO DO IF SIMULTANEOUS PRESIDENTIAL AND VICE PRESIDENTIAL INABILITY STRUCK TODAY Roy E. Brownell II* Dual incapacity is one of three major inability scenarios involving the Vice President that threatens the continuity of the executive branch. The current state of the law in this area, unfortunately, leaves only imperfect options for policymakers. This Article proposes that, in the event of a dual inability, the Speaker, the President pro tempore of the Senate, and the Cabinet should meet and then jointly declare that the Speaker is Acting President until either the President or Vice President regains capacity. At the same time, the Speaker—as the new Acting President—the President pro tempore, and the Cabinet should request that Congress ratify their decision and the process they undertook to reach that determination. INTRODUCTION ........................................................................................ 1028 I. TWO CONSTITUTIONAL NORMS: THE NEED TO ENSURE THAT EXECUTIVE POWER NEVER LAPSES AND THE EXISTENCE OF PROCEDURAL GUIDELINES FOR REMOVING A PRESIDENT FOR INCAPACITY .................................................................................. 1033 II. THE LEGAL FRAMEWORK .................................................................. 1035 III. ALTERNATE APPROACHES TO RESOLVING AN IMMEDIATE OCCURRENCE OF DUAL INCAPACITY ........................................... 1037 A. Letter Arrangements and Contingency Plans in General ....... 1037 1. Practicality ....................................................................... 1037 2. Legality ............................................................................ 1039 a. Pre-Twenty-Fifth Amendment Letter Agreements ...... 1039 * The author would like to thank John Feerick, John Rogan, Joel Goldstein, Louis Fisher, Seth Barrett Tillman, Brian Kalt, Don Wallace, Jr., Akhil Amar, and the students of Fordham University School of Law Clinic on Presidential Succession for helping the author refine his thinking on this subject. A number of memoranda cited in this article are from the George H.W. Bush and William J. Clinton Presidential Libraries. Securing these materials represents the joint effort of the author and John Rogan. This Article was prepared for the symposium entitled Continuity in the Presidency: Gaps and Solutions held at Fordham University School of Law. For an overview of the symposium, see Matthew Diller, Foreword: Continuity in the Presidency: Gaps and Solutions, 86 FORDHAM L. REV. 911 (2017). The views expressed herein and any errors are the author’s alone. 1027 1028 FORDHAM LAW REVIEW [Vol. 86 b. Post-Twenty-Fifth Amendment Agreements and Contingency Plans .................................................... 1043 3. Legitimacy ....................................................................... 1045 B. The Contingent Grant-of-Power Theory ................................. 1046 1. Advantages ....................................................................... 1048 2. Drawbacks........................................................................ 1048 C. The Reagan-Bush-Clinton Contingency Plans ....................... 1051 D. Congress Passes a Statute Before the Speaker Becomes Acting President .................................................................... 1053 E. Impeachment ........................................................................... 1054 IV. THE RECOMMENDED APPROACH: THE SPEAKER, PRESIDENT PRO TEMPORE, AND CABINET DETERMINE DUAL INCAPACITY AND REQUEST CONGRESSIONAL RATIFICATION .................................. 1055 A. Arguments in Favor of This Approach ................................... 1056 1. Legality ............................................................................ 1056 a. Inclusion of the Cabinet ............................................. 1056 b. Inclusion of the PPT ................................................... 1057 c. Inclusion of Congress ................................................. 1059 2. Legitimacy ....................................................................... 1063 3. Practicality ....................................................................... 1064 V. POTENTIAL COUNTERARGUMENTS .................................................... 1065 A. Legislative Succession Is Unconstitutional ............................. 1065 B. The Approach Violates Separation of Powers ........................ 1068 C. Requesting Authorization from Congress Is Too Risky .......... 1069 D. Potential Challenges from the Officeholders or Their Families ................................................................................ 1071 CONCLUSION ........................................................................................... 1072 INTRODUCTION The legal architecture governing presidential succession and inability leaves unaddressed a number of potential hazards that threaten the continuity of American governance.1 Vice presidential incapacity is implicated in at least three of these scenarios.2 These situations entail (1) when the President and Vice President are simultaneously unable to fulfill their duties—what will be called “dual incapacity,” (2) when there is a healthy President and an incapacitated Vice President, and (3) when a President leaves office abruptly 1. See, e.g., Akhil Reed Amar, Applications and Implications of the Twenty-Fifth Amendment, 47 HOUS. L. REV. 1, 3 (2010); John D. Feerick, Presidential Inability: Filling in the Gaps, POL. & LIFE SCI., Fall 2014, at 11, 11; Fordham Univ. Sch. of Law’s Clinic on Presidential Succession, Report, Ensuring the Stability of Presidential Succession in the Modern Era, 81 FORDHAM L. REV. 1, 13 (2012) [hereinafter First Clinic Report]. 2. In this Article, “incapacity” and “inability” are used interchangeably. 2017] SOLVING DUAL INABILITY 1029 and an incapacitated Vice President is slated to succeed him.3 This Article will focus on the first of these three perilous situations: dual incapacity.4 Groundbreaking work has analyzed what policymakers should do prospectively to fix the problem of dual incapacity.5 However, the literature has not examined what should be done if dual incapacity were to occur right now, before a public solution is put into place. As such, this Article addresses this gap in the literature and suggests necessary steps to be taken moving forward.6 3. See Amar, supra note 1, at 20–23, 27–28; John D. Feerick, Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment, 79 FORDHAM L. REV. 907, 935– 39 (2010); First Clinic Report, supra note 1, at 13–14, 25–26, 31;. 4. This piece is intended to be the first in a series of three articles on how to address immediate instances of vice presidential incapacity, each focusing on a different scenario. See infra notes 43, 95. The nation has never experienced dual incapacity of any serious duration, though for a few moments in 1986 both President Ronald Reagan and Vice President George H.W. Bush were simultaneously unconscious. See Roy E. Brownell II, Vice Presidential Inability: Historical Episodes That Highlight a Significant Constitutional Problem, 46 PRESIDENTIAL STUD. Q. 434, 434–35 (2016). There have also been several occasions when dual incapacity could have occurred, including instances involving President James Madison and Vice President Elbridge Gerry in 1813, President Abraham Lincoln and Vice President Andrew Johnson in 1865, and President John F. Kennedy and Vice President Lyndon Johnson in 1963. See id. at 440–41, 448, 449; see also JOHN D. FEERICK, THE TWENTY–FIFTH AMENDMENT: ITS COMPLETE HISTORY AND APPLICATIONS 4–5 (3d ed. 2014); GARRETT M. GRAFF, RAVEN ROCK: THE STORY OF THE U.S. GOVERNMENT’S SECRET PLAN TO SAVE ITSELF—WHILE THE REST OF US DIE 180 n.* (2017). 5. See Amar, supra note 1, at 32–35; Feerick, supra note 1, at 19–20; First Clinic Report, supra note 1, at 28–35, 61–63; see also Feerick, supra note 3, at 942–43. 6. Presumably, with concern over dual incapacity at least partly in mind, the President and Vice President seldom travel on the same flight. See Juliet Lapidos, Do Obama and Biden Always Fly in Separate Planes?, SLATE (Apr. 13, 2010, 5:47 PM), http://www.slate.com/articles/news_and_politics/explainer/2010/04/do_obama_and_biden_a lways_fly_in_separate_planes.html [https://perma.cc/LBA4-7PQL]. Prior to the jet age, a similar policy discouraged the President and Vice President from riding on the same train. Both Roosevelt and Garner out of Country;

Load more

  49

Copy Link