Delegation of Power

October 17, 1955

“In case of the removal of the President from office, or of 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 removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly until the disability be removed or a President shall be elected.” Thus reads the Constitution. Death and resignation are matters beyond dispute; but “inability” is more often than not a question of opinion. Does it refer to physical inability? Or (as some suggest), merely to mental inability?

And who is to decide that the inability exists? The Constitution does not say explicitly who is to make that decision, but by implication it puts it in the hands of Congress. Congress, in any case, is explicitly authorized to pass laws governing the subject. And Congress may also, by explicit direction, provide for purely temporary replacement of the President “until the disability be removed.”

Yet from the beginning of our history Congress has neglected its clear duty in this matter, in spite of the sharpest reminders. President Garfield was shot on July 2, 1881, and lived on for 80 days. During his illness he performed only one official act—the signing of an extradition paper. At the first opportunity one would have thought that Congress would have made legal provision to prevent a repetition of such paralysis in government. It did nothing. President Wilson collapsed on Sept. 25, 1919, and was not able to attend a Cabinet meeting until the following April. Once more government had been paralyzed. Once more Congress ignored a warning.

This is not the moment to attempt to make any Constitutional change concerning this problem; but it is clearly the time to make legal provision for the present emergency. A person who has suffered a coronary thrombosis needs, above all, two things—complete physical and mental rest (and this is usually to be counted in months rather than weeks), and complete relief from anxiety. The great danger of the present situation is that Mr. Eisenhower will be pushed into attempting too much too soon, and risking a setback. Many Republicans are trying to minimize his illness. Some even foolishly talked of his resuming the reins of government in a few weeks. And a few extreme Democrats call it presumptuous for Vice President Nixon or Sherman Adams to carry on routine functions. Yet it is of the utmost importance not only that Mr. Eisenhower should not be prevailed upon to do too much too soon, but that he should not be made to suffer anxiety because of his enforced inactivity.

The simplest and safest way to insure the President his needed rest, and at the same time to avoid the many dangers of a temporarily headless government, is to get Mr. Eisenhower’s consent to call a special session of Congress and to submit to it, a simple bill allowing the President to delegate as much of his powers and duties as he saw fit to the Vice President, and also to withdraw this delegation at any time he thought proper. This would give Mr. Eisenhower the choice of acting in whatever way he thought wisest. It would give him the assurance that the Vice President could make whatever decisions or take whatever actions were necessary until the President’s full recovery. And it would insure that these actions would be legal.

The fact that there is no government emergency at the moment of writing is not a reason for doing nothing. On the contrary, it provides the very opportunity necessary for Congress to provide the discretionary powers of delegation which could enable our government to make whatever quick decision or set of decisions might be necessary in the event of an unexpected emergency in foreign relations or in domestic economic policy without strain on the President or further risk to his health. This is the course indicated by forethought and common prudence.