The Vice Presidency

April 15, 1957

The decision regarding what should happen if a President is unable “to discharge the powers and duties” of his office can have crucial consequences for business. After studying the problem for three months the President and Attorney General have come up with a solution which seems to satisfy no one. If we break the problem into segments, in fact, it becomes clear that part of what they propose is unnecessary, and the rest inadvisable.

They propose a constitutional amendment to provide, first, that if the President were disabled and realized it, he could delegate his powers to the Vice President and could resume them when he had recovered. But this could be done by a short and simple law under the Constitution as it stands. The relevant provision (Art. II, Sec. I) is only 83 words long:

“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.” (My italics.)

A POWER OF CONGRESS

This provision is said to be vague concerning what or who determines Presidential “inability.” But it explicitly gives Congress power to decide all such details by legislation. If Congress, therefore, under this provision, explicitly authorized the President to transfer the powers and duties of his office temporarily, it is inconceivable that the Supreme Court would hold that Congress had acted beyond its constitutional powers.

The constitutional amendment proposed by the Attorney General, however, would go farther, and provide that if the President were disabled but unable to delegate his powers (in the event of a stroke or insanity, say), the Cabinet could decide by majority vote to have the Vice President assume the President’s powers until the President stated in writing that he was resuming them.

Now this proposal would put a crucial decision in the hands of mere Presidential appointees. And as it would require a constitutional amendment to do this in any case, it raises the question whether we should not, while we are at it, go farther and abolish the office of Vice President altogether.

If anyone besides the President himself is to have the power of relieving him of the duties of his office, even temporarily, it should clearly be Congress. Congress, in fact, already has this constitutional power under the impeachment provision. Following that precedent, a new amendment might provide for a President’s removal for disability by a majority vote in the House confirmed by a two-thirds vote in the Senate.

FIFTH WHEEL

One way of solving the problem of who should succeed the President in case of his disability or death would be to abolish the office of Vice President, and give Congress the power to choose the President’s successor; but with the provision, say, that if death or disability occurred before the Congressional mid-term elections, a new Presidential election would be held at the same time as those elections to fill the unexpired term.

There are many possible variations on such a plan, and they would need to be carefully considered. But there is certainly nothing novel in the proposal to get rid of the wholly unnecessary office of the Vice Presidency, and to let the Senate choose its own presiding officer. As long ago as 1803, the Vice Presidency was compared to “a fifth wheel to a coach.” Yet, as John Quincy Adams wrote in 1841, it can place “in the Executive chair a man never thought of for that office by anybody.”

To remove the problem from all personal or partisan considerations, no proposed constitutional amendment on the subject should become effective before the election of 1960. Meanwhile Congress should by simple law authorize the President temporarily to delegate his powers and duties to the Vice President.