Foreword: Continuity in the Presidency: Gaps and Solutions
Foreword: Continuity in the Presidenc y: Gaps and Solutions
Matthew Diller 0 1
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1 Fordham University School of Law
Recommended Citation Matthew Diller, Foreword: Continuity in the Presidency: Gaps and Solutions, 86 Fordham L. Rev. 911 (). Available at: http://ir.lawnet.fordham.edu/flr/vol86/iss3/2
Foreword: Continuity in the Presidency: Gaps and Solutions
Law; Constitutional Law; Law and Politics; Legal History; President/Executive Department; Legislation
Thi s foreword is available in Fordham Law Review: http://ir.lawnet.fordham.edu/flr/vol86/iss3/2
FOREWORD: CONTINUITY IN THE
PRESIDENCY: GAPS AND SOLUTIONS
This symposium issue featuring a report and articles on the Twenty-Fifth
Amendment and the presidential succession system is perfectly timed. Its
release comes in the final month of the year that marked the fiftieth
anniversary of the Twenty-Fifth Amendment’s ratification1 and at a moment
of unprecedented public discussion of the Amendment.2 Yet, in Fordham
Law School’s unique history with the Twenty-Fifth Amendment, auspicious
timing is not unusual.
On Sunday, November 17, 1963, the New York Times published a letter
warning of the dangers posed by the gaps and ambiguities in the
Constitution’s provisions for handling presidential inabilities.3 The
foursentence letter at the bottom of page eight focused on an issue that had
receded from the public consciousness.4 President Dwight D. Eisenhower
had several health issues, but the country had since elected a young and
seemingly healthy president.5 However, the letter’s author, John D. Feerick,
who had graduated from Fordham Law School two years earlier and would
be the school’s dean nineteen years later, asserted that it was time for
Congress to address the issue.6 The following Friday, President John F.
* Dean and Paul Fuller Professor of Law, Fordham University School of Law. I would like
to thank Dean John Feerick for making Fordham Law School a center of study and analysis
of issues relating to presidential succession over the past half century. Dean Feerick has
transformed Fordham Law School in many ways that legal education and the Fordham Law
community continue to benefit from. Through his work on presidential succession, he has
made a lasting mark on the structure of democratic governance in the United States. He is an
inspiration to me and so many others.
Kennedy was assassinated,7 catapulting issues of presidential succession and
inability to the front page and onto Congress’s agenda.8
Fortunately, John had written more than four sentences on the topic. The
Fordham Law Review had published his first comprehensive article on the
subject a few weeks earlier in its October 1963 issue.9 And John had sent
copies to the nation’s top policymakers, which put his proposal for a
constitutional amendment on their desks when consensus emerged that it was
time for Congress to act.10
Over the next four years, John worked through the American Bar
Association (ABA) to participate in the Twenty-Fifth Amendment’s drafting
and to lobby lawmakers across the country during the ratification period.11
In his article for this issue, John describes those efforts as well as the work
of the ABA and lawyers across the country to improve the nation’s founding
document.12 The ABA’s cosponsorship of the symposium, through its
Standing Committee on Election Law, is a fitting continuation of a
collaboration that began in 1964.
Other contributions to this issue highlight the influences that made the
Twenty-Fifth Amendment possible. Rebecca C. Lubot’s revisionist history,
“‘A Dr. Strangelove Situation’: Nuclear Anxiety, Presidential Fallibility, and
the Twenty-Fifth Amendment,” postulates that the Kennedy assassination
was not the only impetus for Congress to strengthen the procedures for
ensuring that the nation has an able president.13 She describes how anxiety
over the Cold War and the rise of the nuclear age focused lawmakers on the
dangers posed by disruptions in presidential leadership and spurred them to
Joel K. Goldstein’s article, “The Bipartisan Bayh Amendment:
Republican Contributions to the Twenty-Fifth Amendment,” engages in its
own form of revisionist history.15 That Democratic Senator Birch Bayh
shepherded the Twenty-Fifth Amendment through Congress might leave
some with the impression that credit for the Amendment belongs to
Democrats. But Goldstein shines light on the countless contributions that
Republicans made to support the Amendment’s drafting and approval.16
What is seen is a testament to members of both parties and the power of
lawmakers putting politics aside to solve a pressing national problem.
The product of Congress’s bipartisan effort has served the country well
over the past half century. The Twenty-Fifth Amendment twice filled
vacancies in the vice presidency, thus enabling an appointed Vice President
to become President on the resignation of an elected President and facilitating
the transfer of presidential power to the Vice President as Acting President
on three occasions when Presidents underwent general anesthesia.17
Fordham Law School has continued its engagement with the topic of
presidential succession since the Twenty-Fifth Amendment’s ratification.
The school hosted a symposium in 1976 on the selection of Vice Presidents18
and another symposium in 2010 on the adequacy of the presidential
19 And, in the 2010
to 2011 academic year, Fordham Law
students in the first Presidential Succession Clinic studied the succession
system to arrive at a wide range of reform recommendations.20 The articles
and proceedings of both symposia, as well as the Clinic’s Report, were
published in the Fordham Law Review.
This year, Fordham Law School marked the Twenty-Fifth Amendment’s
fiftieth anniversary with this symposium and two other programs: a public
discussion between Dean Feerick and Professor Goldstein a week before the
February 10th anniversary21 and a conference at the Bipartisan Policy Center
in Washington, D.C., which the school cosponsored with the ABA’s Standing
Committee on Election Law and the Bipartisan Policy Center.22
Improving the succession system has been a consistent theme of Fordham
Law School’s history with the Twenty-Fifth Amendment, and this issue adds
many more pages to that history. Roy E. Brownell’s article proposes an
approach for the Cabinet and congressional leaders to follow if the President
and Vice President became simultaneously disabled.23 The Twenty-Fifth
Amendment’s framers did not include a provision for addressing “dual
inabilities” out of concern that a more complex amendment would encounter
opposition.24 Some have argued that Congress has the power to legislate a
solution,25 but, because it has not done so, Brownell proposes an innovative
process in the absence of clear constitutional or statutory procedures.26
Robert E. Gilbert’s article, “The Twenty-Fifth Amendment and the
Establishment of Medical Impairment Panels: Are The Two Safely
Compatible?,” considers two proposals for creating panels to evaluate the
President’s health.27 Both proposed panels would be comprised of
physicians who would report their findings to the Vice President and
Cabinet.28 Although these panels might help inform those officials, Gilbert
urges consideration of the challenges the panels present, including the impact
of partisanship and concerns about the President’s right to privacy.29
Finally, the report of the second Presidential Succession Clinic advances
recommendations on an array of topics related to the Twenty-Fifth
Amendment.30 Fourteen Fordham Law students developed the report over
the course of the past academic year under Dean Feerick’s guidance. They
conducted extensive research and interviewed over twenty-five leading
scholars and experts, many with experience serving at the highest levels of
The students recommend that Congress pass laws reforming the current
line of presidential succession32 and creating procedures for addressing the
“gaps” in the succession system caused by the absence of provisions for
handling vice presidential and dual inabilities.33 The report also outlines a
procedure for Congress to follow if it were required to decide a dispute over
the President’s capacity under Section 4 of the Twenty-Fifth Amendment.34
The recommendations are not limited to steps Congress can take. The
Clinic suggests that the President and Vice President create an arrangement
for transferring the powers and duties of the presidency during emergencies
when there is not enough time to invoke Section 4.35 Pointing to some past
presidents’ psychological ailments, the students recommend the addition of
a mental health professional to the unit of doctors and nurses who care for
the President and White House staff.36
The report even covers issues of health and succession before the President
reaches the White House. It recommends new political party rules for
replacing presidential candidates and a commission for determining what
medical information presidential candidates should release about
These creative, informed, and judicious recommendations received their
first public airing at the symposium on September
, when the clinic
students, most now recent graduates, made impressive presentations
summarizing them.38 The students are carrying on Fordham Law School’s
legacy as the presidential succession law school, which is rooted in the
school’s unparalleled tie to part of the Constitution.
That legacy began with Dean Feerick’s October 1963 Fordham Law
Review article. Its title asked a question: “The Problem of Presidential
Inability—Will Congress Ever Solve It?”39 The answer came much sooner
than Dean Feerick seemed to expect it would. And it was not simply due to
fortuitous timing. The Twenty-Fifth Amendment would not be part of the
Constitution without the countless lawmakers, citizens, and lawyers who
asked what they could do for their country and committed themselves to
improving our democracy by taking on the immensely ambitious mission of
amending its founding document. At a time when many are questioning the
government’s capacity to solve problems, the Twenty-Fifth Amendment’s
story, as illuminated in this issue, provides hope. I could not be prouder of
Fordham Law School’s role in this history, which is celebrated and carried
on in the following pages.
1. See John Feerick , When a President Is Unable to Serve: 50 Years Ago, the 25th Amendment Codified the Process for Removing the Chief Executive , N.Y. DAILY NEWS ( Feb . 9, 2017 ), http://www.nydailynews.com/opinion/president-unable -serve-article-1 .2967643 [https://perma.cc/ENP9-RYHJ].
2. See Josh Magness , What Is the 25th Amendment-and Why Are People Talking About It? , MCCLATCHY (Oct. 12 , 2017 , 8 :52 AM), http://www.mcclatchydc.com/news/politicsgovernment/article178423211.html [https://perma.cc/R565-Y2D5].
3. John D. Feerick , Letter to the Editor, Fixing Presidential Succession, N.Y. TIMES , Nov. 17 , 1963 , at E8.
4. See id.
5. JOHN D. FEERICK , THE TWENTY-FIFTH AMENDMENT : ITS COMPLETE HISTORY AND APPLICATIONS 54 (3d ed. 2014 ).
6. See Feerick , supra note 3.
7. JOHN D. FEERICK , FROM FAILING HANDS: THE STORY OF PRESIDENTIAL SUCCESSION 3 ( 1965 ).
8. See FEERICK , supra note 5 , at 56.
9. See John D. Feerick , The Problem of Presidential Inability-Will Congress Ever Solve It? , 32 FORDHAM L. REV. 73 , 73 ( 1963 ).
10. See generally John D. Feerick , The Twenty-Fifth Amendment : A Personal Remembrance , 86 FORDHAM L. REV. 1075 ( 2017 ).
11. See id.
12. See id.
13. Rebecca C. Lubot , “A Dr. Strangelove Situation”: Nuclear Anxiety, Presidential Fallibility, and the Twenty-Fifth Amendment, 86 FORDHAM L . REV. 1175 , 1176 - 78 ( 2017 ).
14. See id.
15. Joel K. Goldstein , The Bipartisan Bayh Amendment: Republican Contributions to the Twenty-Fifth Amendment, 86 FORDHAM L . REV. 1137 , 1193 - 40 ( 2017 ).
16. See id.
17. See John D. Feerick , Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment, 79 FORDHAM L . REV. 907 , 930 - 32 ( 2010 ).
18. See generally Symposium on the Vice Presidency: American Bar Association Special Committee on Election Reform, 45 FORDHAM L . REV. 707 ( 1977 ).
19. See generally Symposium, The Adequacy of the Presidential Succession System in the 21st Century: Filling the Gaps and Clarifying the Ambiguities in Constitutional and Extraconstitutional Arrangements, 79 FORDHAM L . REV. 775 ( 2010 ).
20. 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 , 7 ( 2012 ) [hereinafter First Clinic Report] .
21. John D. Feerick et al., Presidential Succession and Disability: Marking the 50th Anniversary of the 25th Amendment , FORDHAM L. ARCHIVE SCHOLARSHIP & HIST. (Feb. 3 , 2017 ), http://ir.lawnet.fordham.edu/twentyfifth_amendment_photos/5/ [https://perma.cc/C868-3B64].
22. The First 50 Years of the 25th Amendment, Part 1 , FORDHAM L. ARCHIVE SCHOLARSHIP & HIST . (May 10, 2017 ), http://ir.lawnet.fordham.edu/twentyfifth_ amendment_photos/6/ [https://perma.cc/2ZG6-TRXV] (providing a video recording of the symposium); The First 50 Years of the 25th Amendment, Part 2 , FORDHAM L. ARCHIVE SCHOLARSHIP & HIST . (May 10, 2017 ), http://ir.lawnet.fordham.edu/twentyfifth_ amendment_photos/8/ [https://perma.cc/EXN4-3ERH] (same); The First 50 Years of the 25th Amendment, Part 3 , FORDHAM L. ARCHIVE SCHOLARSHIP & HIST . (May 10, 2017 ), http://ir.lawnet.fordham.edu/twentyfifth_amendment_photos/6/ [https://perma.cc/TXN9- LSAN] (same).
23. Roy E. Brownell II , What to Do If Simultaneous Presidential and Vice Presidential Inability Struck Today, 86 FORDHAM L . REV. 1027 , 1056 ( 2017 ).
24. See First Clinic Report, supra note 20 , at 23-25.
25. See id. at 27-30.
26. See Brownell, supra note 23 , at 1036.
27. Robert E. Gilbert, The Twenty-Fifth Amendment and the Establishment of Medical Impairment Panels: Are The Two Safely Compatible?, 86 FORDHAM L . REV. 1111 , 1115 ( 2017 ).
28. See id. at 1116 , 1126 .
29. See id. at 1135-36.
30. Second Fordham Univ. Sch. of Law Clinic on Presidential Succession, Report, Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System, 86 FORDHAM L . REV. 917 , 922 ( 2017 ).
31. See id.
32. See id. at 945.
33. See id. at 953.
34. See id. at 975.
35. See id. at 929.
36. See id. at 938.
37. See id. at 1005 , 1009 .
38. See The First 50 Years of the 25th Amendment, Part 1 , supra note 22.
39. See generally Feerick, supra note 9.