What to Do If Simultaneous Presidential and Vice Presidential Inability Struck Today
W hat to Do If Simultaneous Presidential and Vice Presidential Inability Stuck Today
Roy E. Brownell II 0 1
0 Thi s Symposium is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
1 Roy E. Brownell II, What to Do If Simultaneous Presidential and Vice Presidential Inability Stuck Today , 86 Fordham L. Rev. 1027 (). Available at:
W hat to Do If Simultaneous Presidential and Vice Presidential Inability
Law; Constitutional Law; Law and Politics; Law and Society; President/Executive Department; Legislation
Thi s symposium is available in Fordham Law Review: http://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.
I. TWO CONSTITUTIONAL NORMS: THE NEED TO ENSURE THAT
EXECUTIVE POWER NEVER LAPSES AND THE EXISTENCE OF
PROCEDURAL GUIDELINES FOR REMOVING A PRESIDENT FOR
II. THE LEGAL FRAMEWORK .................................................................. 1035
III. ALTERNATE APPROACHES TO RESOLVING AN IMMEDIATE OCCURRENCE OF DUAL INCAPACITY ........................................... 1037
* 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.
1. See, e.g., Akhil Reed Amar, Applications and Implications of the Twenty-Fifth
Amendment, 47 HOUS. L. REV. 1, 3 (
); 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.
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
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–
); 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),
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; Hull Is Chief in Unprecedented Situation, N.Y.
TIMES, Oct. 17, 1935, at A1 [hereinafter Both Roosevelt and Garner]. In the same vein, the
two officeholders are rarely overseas simultaneously. See Juliet Eilperin, With Obama and
Biden Both Overseas, Who’s in Charge?, WASH. POST (Mar. 19, 2013),
https://www.washingtonpost.com/news/post-politics/wp/2013/03/19/with-obama-and-bidenboth-overseas-whos-in-charge [https://perma.cc/F37P-ZLGM]; Steve Holland, In Rarity,
Obama, VP Biden May Be out of U.S. at Same Time Next Week, REUTERS (Mar. 14, 2013, 6:53
[https://perma.cc/KG7PZKSK]; Donovan Slack, Obama and Biden Abroad at the Same Time?, POLITICO (Mar. 14,
2013, 5:49 PM),
http://www.politico.com/blogs/politico44/2013/03/obama-and-bidenabroad-at-the-same-time-159371 [https://perma.cc/8X9H-ZV4S]. The policy of trying to
ensure that one of the two officeholders remains on U.S. soil has been in place for some time.
See Terence Smith, For President, Trips Resume at Quick Pace, N.Y. TIMES, July 7, 1980, at
B11. The first time both were out of the country simultaneously was in 1935 when President
Franklin D. Roosevelt and Vice President John Nance Garner were in office. See Both
Roosevelt and Garner, supra, at A1; see also EDWARD SAMUEL CORWIN, THE PRESIDENT:
OFFICE AND POWERS, 1787–1957, at 346 n.49 (4th rev. ed. 1957). Questions about whether
both officeholders being abroad at the same time constitutes dual incapacity arose as late as
the 1940s. See Associated Press, Trips of Roosevelt, Wallace Set Precedent; Experts Deny
President Gives Up Office, N.Y. TIMES, Apr. 21, 1943, at 10. Following President Kennedy’s
assassination, newly elevated President Johnson did not travel outside the country until he had
a Vice President. See GRAFF, supra note 4, at 184.
The legal problems surrounding dual incapacity derive from shortcomings
in the 1947 presidential succession statute.7 The 1947 law addresses dual
incapacity, but it omits two essential considerations. The law provides that
the Speaker of the House of Representatives becomes Acting President if the
President and Vice President both become incapacitated and, if the Speaker
is unable or unwilling to become Acting President, the line of succession then
turns to the President pro tempore (PPT) of the Senate and after him to
Cabinet officers in the order of their department’s creation.8 However, the
statute says nothing about (1) how decisions as to dual incapacity are to be
made or (2) who is to make them.9 Thus, in a situation involving dual
incapacity, there is no clear indication of who would do what to resolve the
quandary. As a result, dual incapacity threatens to paralyze the executive
branch at its highest levels.
The task at hand is further complicated by the fact that public knowledge
is limited regarding what contingency plans are currently in place (if any) to
address incapacity situations because such steps are confidential.10 This
Article has unearthed contingency plans that have not previously been made
public, but it is unclear if they remain in force. These prior plans reflect that,
given the failure of the executive branch and Congress to formulate a
legislative solution, policymakers do not have good options and have been
forced to improvise.11 The goal of this Article is to identify the least bad
option under the circumstances.
Any attempt to provide policymakers with an “off-the-shelf” solution to
an immediate case of dual incapacity must try to satisfy three desiderata as
closely as possible: the proposal must be lawful, politically legitimate,12 and
practical. Consistent with these three requirements, this Article offers a
solution that policymakers should consider if this difficult issue should arise
(assuming there is not a public solution in place at the time).
The approach put forward in this Article is that, upon learning of an
apparent dual incapacity, the Speaker (or officeholder who is next in the line
of succession)13 should consult with the PPT and the principal officers of the
executive departments (i.e., the President’s Cabinet).14 The Speaker, PPT,
and a majority of the Cabinet should then decide whether the President and
Vice President are, in fact, incapacitated.15
If the Speaker, PPT, and a majority of the Cabinet decide that dual
incapacity has indeed occurred, they should instruct executive branch
lawyers to craft a legal opinion articulating the legal basis upon which they
have acted. Following the opinion’s completion, the Speaker, PPT, and
Cabinet should make the dual incapacity determination and legal opinion
public and announce that the Speaker will be assuming the role of Acting
President until the incapacity of the President or Vice President has been
In this joint public statement, the Speaker-turned-Acting President, PPT,
and Cabinet would announce that what has been done was consistent with the
Presidential Succession Act of 1947. But, out of an abundance of caution,
the Speaker, PPT, and Cabinet would state further that they are requesting
11. See A Modern Father of Our Constitution: An Interview with Former Senator Birch
Bayh, 79 FORDHAM L. REV. 781, 807 (
) [hereinafter Interview with Sen. Bayh] (addressing
solutions to dual incapacity under current law); id. (statement of John D. Feerick) (“That’s a
tough problem. I don’t know how that would play out. There are just a lot of possibilities.”);
cf. Joel K. Goldstein, Taking from the Twenty-Fifth Amendment: Lessons in Ensuring
Presidential Continuity, 79 FORDHAM L. REV. 959, 1040 (
12. See 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, 934–36, 948–50, 955–56, 971–74,
977–80, 986, 988, 1006 (2017) [hereinafter Second Clinic Report]; cf. Herbert Brownell, Jr.,
Presidential Disability: The Need for a Constitutional Amendment, 68 YALE L.J. 189, 200
13. To avoid redundancy, unless otherwise stated, the term “the Speaker” will refer to the
Speaker or the next in line of succession if the Speaker cannot, or will not, serve.
14. Cf. Interview with Sen. Bayh, supra note 11, at 807. Senator Bayh stated, regarding a
dual-incapacity scenario, “If I were Speaker, I’d sure try to see if I could get the Cabinet to
support me.” Id. John Feerick stated that the Speaker is not legally “bound by what the Cabinet
says” in a dual-incapacity scenario, although “the Speaker would probably want to get some
support from the Congress, I would think, as a practical matter . . . .” Id.; see also Feerick,
supra note 3, at 939.
15. As a practical matter, the majority of the Cabinet would almost have to include the
Secretary of State or next eligible executive branch successor and the Attorney General (given
the legal concerns involved). See supra note 8 and accompanying text (discussing possible
constraints upon the Secretary challenging the legality of the Speaker’s elevation); infra Part
that Congress retroactively ratify the process followed by the group in
making their decision.16 The Acting President would then submit
recommended legislative language that would propose a statutory process for
how the President and Vice President could demonstrate that they have
regained their capacity and that would include a clear dual incapacity
determination procedure going forward. This recommended bill language
would closely track Section 4 of the Twenty-Fifth Amendment.17
During the same ceremony, the Speaker would announce his resignation
from Congress. The Speaker would additionally state that, if the President
or Vice President at any point believe they have regained their capacity prior
to the recommended bill’s enactment, either officeholder could make a public
declaration to that effect. If the Acting President, PPT, and Cabinet do not
contest the matter, the formerly incapacitated officeholder (or officeholders)
would then regain their positions.18 If the Speaker, PPT, and a majority of
the Cabinet disagree with the declaration,19 Congress would decide the
matter with legislative inaction resulting in the return of the President and
Vice President to office.20
This Article begins by discussing two structural constitutional norms: (1)
that executive power cannot be permitted to lapse and (2) that any solution
to dual incapacity should be consistent with the Twenty-Fifth Amendment.
Next is a brief overview of the legal considerations involved with dual
incapacity. The Article then discusses possible options to address the
problem, including (1) the use of letter arrangements and contingency plans
in general, (2) the application of the contingent grant-of-power theory
) the contingency plans adopted during the Reagan, Bush, and
Clinton administrations, (
) the adoption of a statute before the Speaker
assumes the position of Acting President,21 and (5) the initiation of
impeachment proceedings.22 The shortcomings of each of these options
require that another approach must be found. A discussion of this Article’s
recommended solution to dual incapacity follows. The Article then closes
with analyses of potential counterarguments.
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
There are two structural constitutional norms that are vital to
understanding how best to address an immediate situation involving dual
incapacity. The first is the structural principle that both continuity and
stability of all three branches of government must be preserved.23 The
second is that there are procedural guidelines established by the Twenty-Fifth
Amendment that should observed in order to remove a President for
With respect to the overriding need for continuity of the executive branch,
the constitutional norm is reflected in several constitutional provisions.
Article II states that “the executive Power shall be vested in a President of
the United States.”25 The word “shall” conveys that it is mandatory that
executive power remain in place.26 Article II also provides that the President
“shall hold his Office during the Term of four Years,”27 again conveying the
expectation that a President must be in office continuously until the end of
his term and another President takes over. Section I, Clause 6 of Article II,28
the Twenty-Fifth Amendment,29 the Recess Appointments Clause,30 and
Sections 3 and 4 of the Twentieth Amendment further underscore the
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2527 (1976)). But, with an incapacitated
President and Vice President, the two are still in office; they simply are suffering from an
incapacity. Second, whatever process that is created to declare the office vacant would have
the effect of removing the President and Vice President from office. However, there is only
one means under the Constitution to permanently remove either officeholder, and that is
through the impeachment process. U.S. CONST. art. II, § 4; Presidential Inability, 42 Op. Att’y
Gen. 69, 81, 91 (
). Third, the vacancy argument was clearly repudiated during
consideration of the Twenty-Fifth Amendment. See Presidential Inability: Hearings on H.R.
836 et al. Before the H. Comm. on the Judiciary, 89th Cong. 87 (1965) (statements of Rep.
Richard Poff and Sen. Birch Bayh); id. at 246 (statements of Rep. Richard Poff and Herbert
Brownell, former Att’y Gen.); see also FEERICK, supra note 4, at 109, 365. As a result, this
constitutional norm would counsel against declaring the offices vacant. Finally, the vacancy
determination process would presumably result in ending the incapacitated President’s and
Vice President’s salary and benefits since they would no longer be in office. This might invite
litigation as the President and Vice President, and their families, would be suffering from a
tangible harm through the deprivation of compensation and health-care benefits (both of which
might be seriously needed if either of the incapacities was health related). For these reasons,
the vacancy option is highly problematic and does not merit extended discussion.
23. See Second Clinic Report, supra note 12, at 936, 967–68.
24. U.S. CONST. amend. XXV.
25. Id. art. II, § 1, cl. 1 (emphasis added).
26. See Joel K. Goldstein, Constitutional Change, Originalism, and the Vice Presidency,
16 PA. J. CONST. L. 369, 390–91 (2013) (discussing the mandatory nature of the word “shall”).
27. U.S. CONST. art. II, § 1, cl. 1 (emphasis added).
28. Id. art. II, § 1, cl. 6.
29. Id. amend. XXV.
30. Id. art. II, § 2, cl. 3; see also Second Clinic Report, supra note 12, at 967.
principle of an enduring executive.31 Indeed, the very existence of the vice
presidency manifests this constitutional precept.32
Moreover, as noted by the U.S. Supreme Court, the Constitution “is not a
suicide pact.”33 It was designed to function, not to flounder, amidst sterile
abstractions.34 The nation needs a President at the head of the executive
branch at all times in order to ensure that the government continues to
operate. To this end, a fundamental constitutional norm has been recognized
that executive power should never lapse.35 Under the Constitution, however,
executive power is uniquely vulnerable to disruption since the executive is
the only one of the three branches in which leadership is manifested in a
In this regard, there are certain presidential duties that are nondelegable.37
Without a President, there is no Commander in Chief of the military,38 no
direction to American diplomacy, no one to veto improvident legislation,39
no one to issue pardons,40 and no one to nominate judges or senior executive
branch officials.41 The broad structural consideration that executive power
may not be permitted to lapse dictates that relevant constitutional and
statutory law must be read broadly and pragmatically to ensure that the
operations of the executive branch can continue so that these nondelegable,
presidential duties may be carried out.
The second structural principle stems from Section 4 of the Twenty-Fifth
Amendment. Section 4 provides:
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, transmit to the President pro tempore of the Senate
and the Speaker of the House of Representatives their written declaration
that the President is unable to discharge the powers and duties of his office,
the Vice President shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President pro tempore of
the Senate and the Speaker of the House of Representatives his written
declaration that no inability exists, he shall resume the powers and duties
of his office unless the Vice President and a majority of either the principal
officers of the executive department or of such other body as Congress may
by law provide, transmit within four days to the President pro tempore of
the Senate and the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties
of his office. Thereupon Congress shall decide the issue, assembling within
forty-eight hours for that purpose if not in session. If the Congress, within
twenty-one days after receipt of the latter written declaration, or, if
Congress is not in session, within twenty-one days after Congress is
required to assemble, determines by two-thirds vote of both Houses that the
President is unable to discharge the powers and duties of his office, the Vice
President shall continue to discharge the same as Acting President;
otherwise, the President shall resume the powers and duties of his office.42
In essence, Section 4 provides a procedural floor when it comes to
removing the President for incapacity. There are three key elements to this
procedural norm: (1) participation by the successor in the inability
determination, (2) participation by the Cabinet in the process, and (
opportunity for the President to appeal the decision. Any means of resolving
dual incapacity, which includes determining presidential inability, should
comply with this constitutional norm.
II. THE LEGAL FRAMEWORK
Unlike the other two vice presidential incapacity scenarios—a healthy
President and an incapacitated Vice President,43 and a President leaving
42. Id. amend. XXV, § 4.
43. As will be discussed in a later article, when addressing an immediate case of sole vice
presidential inability, Congress could likely take action under Article II, Section 1, Clause 6
and the Necessary and Proper Clause by asserting authority to prevent future episodes of dual
incapacity. See Feerick, supra note 3, at 942–43; Second Clinic Report, supra note 12, at 962–
64. An 1853 statute authorizing the administration of the oath of office to the deathly ill Vice
President-Elect William King while he was in Cuba could arguably be seen as an example of
Congress acting to prevent vice presidential inability. See Act of March 2, 1853, ch. 93, 10
Stat. 180; CONG. GLOBE, 32nd Cong., 2d Sess. 787 (1853); Henry Barrett Learned, The
VicePresident’s Oath of Office, NATION, Mar. 1, 1917, at 248–50. Until the early twentieth
century, in many circles, it was thought that if a President or Vice President were overseas
then he was in fact incapacitated. See CORWIN, supra note 6, at 55, 346–47; GRAFF, supra note
4, at 164–65. In addressing vice presidential inability, judicial disability statutes might also
office with an incapacitated Vice President waiting in the wings—dual
incapacity benefits from applicable constitutional provisions. Article II,
Section 1, Clause 6, which will be called the Dual Inability Clause, authorizes
Congress to take action in the area of joint presidential and vice presidential
incapacity. It states that “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 . . . .”44
In addition, the Necessary and Proper Clause reinforces the provisions of
the Dual Inability Clause. It authorizes Congress “[t]o make all Laws which
shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government
of the United States, or in any Department or Officer thereof.”45 In essence,
this Clause allows Congress to act to ensure the execution of other powers of
the federal government.
The Necessary and Proper Clause has been construed broadly in historic
rulings such as McCulloch v. Maryland.46 Its broad mandate to “carry into
Execution the foregoing Powers, and all other Powers vested by this
Constitution” gives Congress authority to prevent a lapse in “executive
power” because such authority is among the “other Powers vested by this
provide useful analogous support. See 28 U.S.C § 3 (2012); 28 U.S.C § 372(b) (2012); see
also Second Clinic Report, supra note 12, at 969. Incapacity involving vice presidents and
incapacity involving judges share a common concern: the Constitution is silent on removal
options other than the impeachment process. The author’s view that Congress might be able
to legislate to prevent future episodes of dual incapacity has benefitted from conversations
with Professors John Feerick, John Rogan, and Joel Goldstein.
44. U.S. CONST. art. II, § 1, cl. 6 (emphasis added). It could be argued that the Dual
Inability Clause only authorizes the creation of a line of succession and nothing more. See
Feerick, supra note 3, at 943. Given the overriding structural imperative of ensuring executive
branch continuity and the fact that the succession acts have addressed matters beyond merely
creating a line of succession, see Feerick, supra note 1, at 20, this would seem to be an overly
cramped interpretation of the provision, see John C. Fortier & Norman J. Ornstein,
Presidential Succession and Congressional Leaders, 53 CATH. U. L. REV. 993, 995 (2004);
Second Clinic Report, supra note 12, at 968. In this regard, the expression “provide for the
case” would seem to include sufficient latitude for determining who decides dual incapacity,
and how. Even if the Dual Inability Clause only provides authority for the creation of the line
of succession, the Necessary and Proper Clause doubtlessly would supply Congress with the
power to determine the means of effectuating the former clause. See, e.g., McCulloch v.
Maryland, 17 U.S. 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the Constitution, are
Constitutional.”); THE FEDERALIST NO. 44, at 282 (James Madison) (Clinton Rossiter ed.,
2003) (“No axiom is more clearly established in law, or in reason, than that wherever the end
is required, the means are authorized; wherever a general power to do a thing is given, every
particular power necessary for doing it is included.”); see also 3 ALEXANDER HAMILTON,
Opinion as to the Constitutionality of the Bank of the United States, in THE WORKS OF
ALEXANDER HAMILTON 445, 445–95 (Henry Cabot Lodge ed., 1904) (1791); Feerick, supra
note 3, at 942–43; Second Clinic Report, supra note 12, at 962–64, 968.
45. U.S. CONST. art. I, § 8, cl. 18. For more on the potential use of the Necessary and
Proper Clause to address inability, see FEERICK, supra note 4, at 246; Feerick, supra note 1, at
20; Feerick, supra note 3, at 942–43; First Clinic Report, supra note 1, at 29–30.
46. 17 U.S. 316 (1819). For further discussion of the Necessary and Proper Clause in a
dual incapacity setting, see Feerick, supra note 1, at 20; Feerick, supra note 3, at 942; First
Clinic Report, supra note 1, at 29; Second Clinic Report, supra note 12, at 962–64.
Constitution.”47 That is to say, use of the Necessary and Proper Clause in
this context would be effectuating the overall purposes of Article II as well
as, more specifically, the Executive Power and Dual Inability Clauses.
The Presidential Succession Act of 1947 was enacted under authority of
the Dual Inability Clause and was likely reinforced by the Necessary and
Proper Clause.48 It states that
[i]f, by reason of death, resignation, removal from office, inability, or
failure to qualify, there is neither a President nor Vice President to
discharge the powers and duties of the office of President, then the Speaker
of the House of Representatives shall, upon his resignation as Speaker and
as Representative in Congress, act as President.49
As will be recalled, it provides no statutory explanation as to who decides
that the two officeholders are incapacitated, nor does it provide a mechanism
for such determination.
III. ALTERNATE APPROACHES TO RESOLVING AN IMMEDIATE
OCCURRENCE OF DUAL INCAPACITY
Before this Article turns to its recommended approach for addressing an
immediate occurrence of dual incapacity, it will first analyze alternate
solutions. These include (1) letter arrangements and contingency plans in
general, (2) the CGOPT, (
) the Reagan-Bush-Clinton contingency plans, (
ex ante legislation, and (5) impeachment. Each of these proposed solutions
is reviewed to gauge its practicality, legality, and legitimacy. This Part
concludes that each alternative has disqualifying flaws.
A. Letter Arrangements and Contingency Plans in General
One potential means of effectuating various approaches to dual incapacity
is reliance on a preexisting secret letter arrangement or contingency plan.50
47. U.S. CONST. art. 1, § 8, cl. 18; see also McCulloch, 17 U.S. at 413–14.
48. See H.R. REP. NO. 80-17, at 2, 4 (1947); 93 CONG. REC. 7766–67 (1947) (statement of
Sen. Hatch); id. at 7694–96 (statement of Sen. Wherry); id. at 8634 (statement of Rep. Celler).
49. 3 U.S.C. § 19(a)(1) (2012).
50. The focus of this Article is on unanticipated dual incapacity—akin to a situation
involving Section 4 of the Twenty-Fifth Amendment. An anticipated dual incapacity
situation—similar to a situation involving Section 3 of the Twenty-Fifth Amendment (e.g., the
Vice President is in a coma and the President has to have a routine surgical procedure)—could
likely be addressed through a public letter arrangement between the President and the Speaker
whereby the former temporarily delegates authority to the latter. This letter arrangement or
contingency plan could articulate that it is promulgated under authority of the 1947
Presidential Succession Act and that it is consistent with the spirit of Section 3 of the
TwentyFifth Amendment. From a constitutional standpoint, such a letter agreement might fare better
than a secret letter agreement involving unanticipated dual incapacity. For example, assume
the letter arrangement for unanticipated dual incapacity follows the CGOPT. As noted below,
one of the major legal and legitimacy drawbacks to this approach is that the Speaker would be
in the position of acting alone to determine the President’s inability. This is contrary to the
constitutional norms established by Section 4 of the Twenty-Fifth Amendment, which provide
that the next in line of succession should gain the approval of a majority of the Cabinet before
That assumes, of course, that such a plan is in place. One may not be. Since
adoption of the Twenty-Fifth Amendment, the executive branch has never
publicly disclosed the existence of a dual-incapacity agreement.51 While a
secret letter arrangement or contingency plan is essentially a vehicle through
which to implement a specific inability determination process, the approach
deserves to be evaluated on its own since its very existence over time could
come to be seen as a constitutional process through past practice. This is
problematic as the mechanism itself carries with it some inherent flaws.
If a secret letter arrangement or contingency plan does, in fact, currently
exist, its implementation would arguably meet the practicality test. All that
would need to be done would be for the designated person or persons to take
whatever action is laid out in the letter and then cite (and better yet, publicly
produce) the arrangement, and the inability issue would be “fixed” from a
practical standpoint. Given the premium rightly placed on providing the
executive branch with continuous leadership,52 that is certainly a mark in
favor of this alternative.
Assuming a secret letter arrangement or contingency plan is currently in
place, the obvious question is “What does it say?” More precisely, what does
the letter or plan purport to authorize, and based on what legal authority?
Clearly, the constitutionality of a letter arrangement or contingency plan
depends in large part on what is called for in the text of the letter. If, for
example, the letter arrangement or contingency plan follows the CGOPT,53
as argued in Part III.B, it may face serious constitutional or legitimacy
difficulties. If it follows Section 4 of the Twenty-Fifth Amendment,54 it is
more likely to pass constitutional muster. Either way, however, the general
contours of letter arrangements or contingency plans should be made
public.55 This is important from both a constitutional and a legitimacy
a determination can be reached and, if the President contests the question, the matter should
go to Congress for resolution. In an anticipated dual incapacity setting, however, the President
would make the determination of his own inability in advance, which is fully in keeping with
Section 3 of the Twenty-Fifth Amendment. Legitimacy concerns would also seem to be
reduced in an anticipated setting rather than in an unanticipated context since (1) if precedent
from Section 3 is followed, the President would publicly reveal the arrangement himself (as
opposed to the Speaker unveiling a secret letter after announcing his own elevation) and (2)
the inability is typically for a short duration wherein the Speaker would be unlikely to make
significant executive branch decisions. Even if the inability became a long-term one, the
Speaker would still be acting consistent with the norms of Section 3 and with the President’s
prior public approval. That said, a statutory authorization prior to the inability would
obviously be preferable.
51. In his memoirs, Dick Cheney disclosed that, as Vice President, he executed a
presigned resignation letter. The document, however, did not address dual incapacity. See
DICK CHENEY WITH LIZ CHENEY, IN MY TIME: A PERSONAL AND POLITICAL MEMOIR 319–22
52. See generally supra Part I.
53. See Feerick, supra note 3, at 939; First Clinic Report, supra note 1, at 30–31.
54. See infra Part III.C.
55. See Second Clinic Report, supra note 12, at 934–35. This is not a universally held
view. See Interview with Sen. Bayh, supra note 11, at 813 (expressing skepticism about the
need for letter arrangements regarding presidential incapacity to be made public).
a. Pre-Twenty-Fifth Amendment Letter Agreements
On the constitutional front, letter agreements—at least the way they have
been traditionally crafted—have not been thought to be legally binding.56
Prior to the Twenty-Fifth Amendment, Presidents and Vice Presidents
executed letter agreements in case the chief executive became incapacitated.
President Dwight Eisenhower was the first to adopt such an approach when
he signed a letter agreement with Vice President Richard Nixon in 1958.57
Nixon, however, viewed his letter agreement with Eisenhower as being
morally but not legally binding on the parties. The Vice President later wrote
that the “letter established historical precedent” but reflected “mere
expressions of a President’s desires, [and did] not have the force of law.”58
Letters, he contended, “are only as good as the will of the parties to keep
Other authorities have agreed.60 Speaker of the House John McCormack,
who had a comparable agreement with President Lyndon Johnson following
56. See, e.g., FEERICK, supra note 4, at 54.
57. See First Clinic Report, supra note 1, at 77–79. The first executive branch contingency
plan arguably was put in place following the death of President James Garfield and the
elevation of Vice President Chester Arthur in 1881. See John D. Feerick, The Twenty-Fifth
Amendment: Its Origins and History, in MANAGING CRISIS: PRESIDENTIAL DISABILITY AND
THE 25TH AMENDMENT 1, 7 (Robert E. Gilbert ed., 2000); David A. Erhart, Note, “I Am in
Control Here”: Constitutional and Practical Questions Regarding Presidential Succession,
51 U. LOUISVILLE L. REV. 323, 330–31 (2013). Under the succession law at the time, the PPT
and the Speaker were the only successors. Congress, however, was out of session and had yet
to fill either position, and Arthur, as the newly minted President, had to travel from New York
to Washington. Ahead of his departure, Arthur mailed a confidential letter which would have
called the Senate into session to elect a PPT if anything had happened to him on his way to
the capital. He arrived safely and, in the usual manner, then proceeded to issue the
proclamation for Congress to convene. See Giving Voice to Sorrow: Words of Respect and
Affection for Mr. Arthur, N.Y. TIMES (Nov. 21, 1886),
[https://perma.cc/5QCY-EBG5]; see also GEORGE FREDERICK HOWE, CHESTER A. ARTHUR, A
QUARTER-CENTURY OF MACHINE POLITICS 154–55 (1957); Feerick, supra, at 7.
58. RICHARD M. NIXON, SIX CRISES 179–80 (1962). Eisenhower and Attorney General
William Rogers believed that the agreement was not contrary to law but also conceded that
the arrangement rested on the “mutual trust” that existed between the President and the
Vice President. DWIGHT D. EISENHOWER, THE WHITE HOUSE YEARS: WAGING PEACE, 1956–
1961, at 234–35 (1965).
59. NIXON, supra note 58, at 179.
60. See, e.g., 111 CONG. REC. H7937 (daily ed. Apr. 13, 1965) (statement of Rep. Celler);
111 CONG. REC. H3285 (daily ed. Feb. 19, 1965) (statement of Sen. Hruska); Presidential
Inability and Vacancies in the Office of Vice President: Hearing on S.J. Res 1 et al. Before
the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 89th Cong. 32
(1965) [hereinafter 1965 Senate Hearing] (statement of Sen. Roman Hruska); GRAFF, supra
note 4, at 183; Feerick, supra note 3, at 922; Michael Nelson, Background Paper, in A
HEARTBEAT AWAY: REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON THE VICE
PRESIDENCY 79, 87 (1988); Memorandum from Bobbie Greene Kilberg, White House Assoc.
Counsel, to the President Regarding the 25th Amendment (Aug. 21, 1975),
ment_executive_materials [https://perma.cc/M6EU-GJXB]; see also FEERICK, supra note 4,
President John F. Kennedy’s assassination, was of like mind. He was quoted
as saying that their “written agreement . . . [was] outside the law” and
constituted “an agreement between individuals.”61 McCormack’s
predecessor as Speaker, Sam Rayburn, went even further. He contended that
the 1958 letter arrangement between Eisenhower and Nixon not only failed
to bind the parties but was unconstitutional.62 If a letter arrangement is not
legally binding, that calls into question the lawfulness of all subsequent
actions undertaken by the Acting President and could invite litigation.63
These pre-Twenty-Fifth Amendment letters did not speak to dual
incapacity, however. They only addressed situations involving an
incapacitated President. While the content of letter arrangements or
contingency plans largely determines whether they are constitutional and
legally binding, some authorities seem to question the viability of any type
of letter agreement after the Twenty-Fifth Amendment.64
A letter arrangement that explicitly stated it was implementing the
provisions of the Dual Inability and Necessary and Proper Clauses and the
1947 Presidential Succession Act, could be defensible. Were this to be done,
the letter arrangement could be seen as being akin to an agency issuing
regulations to implement a statute (even if the statute makes no explicit
provision for rulemaking).65 This broad statutory construction would seem
warranted given the constitutional premium placed on ensuring executive
It could also be argued that a letter arrangement or a contingency plan
involving dual incapacity, if prepared and made ready for use by multiple
administrations, might acquire a constitutional status over time.66 Certainly,
in the realm of separation of powers, there have been a number of practices
that were begun well after the formative years of the Constitution that later
came to be acknowledged as constitutional doctrine.67 However, if they
currently exist, the secret nature of these contingency arrangements
complicates this argument.
Justice Felix Frankfurter, in his concurrence in Youngstown Sheet & Tube
Co. v. Sawyer,68 famously observed that
[i]t is an inadmissibly narrow conception of American constitutional law to
confine it to words of the Constitution and to disregard the gloss which life
has written upon them. In short, a systematic, unbroken, executive practice,
long pursued to the knowledge of the Congress and never before
questioned, engaged in by Presidents who have also sworn to uphold the
Constitution, making as it were such exercise of power part of the structure
of our government, may be treated as a gloss on “executive Power” vested
in the President by § 1 of Art. II.69
This formulation, which has been used as a guide for determining the
constitutionality of longstanding political custom,70 would seem not to apply
to a secret dual incapacity letter arrangement or contingency plan. First, it
seems highly unlikely that such a procedure would be seen as having been
“pursued to the knowledge of the Congress and never before questioned.”71
If such an agreement exists, it is confidential.72 Perhaps some in Congress
have been briefed on these plans (e.g., the Speaker and PPT) but certainly not
Congress as a whole or, by extension, the public.73 The fact that the existence
and content of pre-Twenty-Fifth Amendment letters were made public would
seem to inform how the “pursued to the knowledge of Congress” formulation
should be interpreted in the context of presidential inability.74 How could
Congress sanction or “never before question” something of which it has no
knowledge (or, at least, very little)?75
The Supreme Court has frequently emphasized the importance of notice in
political-branch disputes over the constitutionality of executive branch
practice. For instance, in Dames & Moore v. Regan,76 the Court reasoned
that “[p]ast practice does not, by itself, create power, but ‘long-continued
practice, known to and acquiesced in by Congress, would raise a presumption
that the [action] had been [taken] in pursuance of its consent.’”77 Given the
judiciary’s reasoning in this decision and others,78 a key plank in Justice
Frankfurter’s formulation in Youngstown—congressional knowledge—
would seem inapplicable in the case of secret dual-incapacity letter
arrangements or contingency plans. Since the congressional notice
requirement is not satisfied, the case that a letter or contingency plan would
achieve the status of a constitutional gloss on executive power due solely to
past practice is certainly made more difficult.
The argument in favor of past practice is further complicated by the fact
that the authority for addressing dual incapacity has been clearly assigned to
Congress by the Constitution.79 Practice cannot change constitutional text,
as Justice Frankfurter himself said in the very same opinion.80 It is especially
difficult to see how Congress could “lose,” or even come to share, its
authority in the dual incapacity realm through an executive branch practice if
the legislative branch were unaware, or almost wholly unaware, of that
Second, it is uncertain whether letter arrangements or contingency plans
actually do constitute a “systematic, unbroken executive practice.”82 The
initial burst of letter arrangements under Presidents Eisenhower, Kennedy,
and Johnson did not address dual incapacity. Moreover, the practice of public
letter arrangements ended abruptly with adoption of the Twenty-Fifth
Amendment. Therefore, these precedents would not seem to qualify as being
part of longstanding practice regarding dual-incapacity plans. While it is not
entirely clear when confidential arrangements about succession and inability
began to be crafted after the Twenty-Fifth Amendment or to what extent they
involve (or involved) dual incapacity,83 it appears that the Reagan
administration was the first to implement such plans.84
b. Post-Twenty-Fifth Amendment Agreements
and Contingency Plans
Though President Johnson and Vice President Hubert Humphrey entered
into an agreement of some sort prior to the Twenty-Fifth Amendment,85 they
do not seem to have done so following adoption of the Amendment.86 Vice
President Spiro Agnew revealed that he and President Richard Nixon never
established an incapacity plan and never spoke about the matter.87 Nor does
it seem that Nixon established a contingency plan with Speaker of the House
Carl Albert when the latter was next in line to the presidency after Agnew’s
departure.88 Apparently, Nixon reached a verbal understanding with Vice
Members of the Ford White House staff advocated that the President enter
into a letter arrangement with Vice President Nelson Rockefeller to effectuate
the Twenty-Fifth Amendment.90 The draft arrangement was never executed,
however.91 Moreover, it did not entail dual incapacity.92 During the Carter
administration, White House staff again tried to execute a letter arrangement
between the President and Vice President; they do not seem to have
succeeded either.93 President Ronald Reagan and Vice President George
H.W. Bush entered into a verbal agreement about how to implement the terms
of the Twenty-Fifth Amendment.94 These efforts, however, did not entail
In 1982, the White House Counsel’s Office under President Reagan
compiled a binder addressing a host of presidential succession and inability
scenarios.95 One of the contingency plans involved dual incapacity. The
Reagan administration proposed to resolve the matter by “implement[ing]
procedures which parallel the 25th Amendment.”96 In this regard, “[t]he
determination . . . should be made by the Speaker of the House and the
Cabinet. They should then transmit their written declaration of inability to
the” PPT and House majority and minority leaders.97 This effort appears to
have been continued under Presidents George H.W. Bush and Bill Clinton.98
Fred Fielding, who served as the White House Counsel under President
Reagan, indicated that the binder he had worked on in the early 1980s was
93. See Email from Jimmy Carter Presidential Library to author (Oct. 3, 2017) (on file
with author); Memorandum from Robert Torricelli, Assoc. Counsel to the Vice President, to
Mike Berman, Counsel to the Vice President 4–5 (Mar. 21, 1978) [hereinafter Torricelli
Memorandum] (on file with the George H.W. Bush Presidential Library Center, C. Boyden
Gray Files, OA/ID No.CF01823, Folder ID No. 1823-005); Wiggins Memorandum, supra
note 91, at 1; see also FEERICK, supra note 4, at 224 (quoting Jimmy Carter as saying that
while he was President there “was no ordinary way to ascertain whether or not [he] was
incapacitated, or when the transfer of authority would be made”).
94. See Memorandum from Dianna G. Holland, Admin. Assistant, Office of White House
Counsel, to the file (July 11, 1986) (on file with author) (“[T]he reference to a long-standing
arrangement between the President and Vice President [in Reagan’s July 13, 1985 letter to
Congress] is not an agreement that was ever put in writing; . . . the President and the Vice
President reaffirmed a discussion that they had after the assassination attempt with regard to
the transfer of power. This reaffirmation was done in [White House Counsel] Mr. Fielding’s
presence shortly before the July 13 event.”).
95. See generally Office of Counsel to the President, Contingency Plans—Death or
Disability of the President (June 1, 1982) [hereinafter Reagan Contingency Plans] (on file with
George H.W. Bush Presidential Library Center, C. Boyden Gray Files, OA/ID No. CF01823,
Folder ID No. 1823-005). The attempt on Reagan’s life may have prompted this undertaking.
See Second Clinic Report, supra note 12, at 933. The Reagan-Bush-Clinton contingency plans
did not address how to handle a situation involving the Vice President alone becoming
incapacitated, though the plans did discuss what to do regarding an incapacitated Vice
President potentially becoming President (i.e., suggesting that, unless the Vice President can
take the oath of office, he cannot become President). Reagan Contingency Plans, supra, tab
G, at 2; Office of Counsel to the President, Contingency Plans—Death or Disability of the
President tab G (Mar. 16, 1993) [hereinafter Clinton Contingency Plans] (on file with William
J. Clinton Presidential Library, Bruce Lindsey Files, OA/ID No. 20652). The author plans to
discuss these matters in a future article. See supra notes 4, 43.
96. Reagan Contingency Plans, supra note 95, tab G, at 2–3; see also Clinton Contingency
Plans, supra note 95, tab G, at 2.
97. Reagan Contingency Plans, supra note 95, tab G, at 2–3; see also Clinton Contingency
Plans, supra note 95, tab G, at 2.
98. Clinton Contingency Plans, supra note 95. The 1982 Reagan contingency plan is
found in the Bush presidential archives in the papers of Bush’s White House Counsel. The
fact that the Reagan plans—and accompanying materials—appear in the Bush Counsel’s file
and that they seem to be identical to those found in the Clinton archives would indicate that
the Bush administration simply adopted Reagan’s plans as well.
is completely silent on how and by whom the inability determination should
be effectuated. Essentially, the memoranda attempt to “fill in the blanks” of
the statute by doing the work assigned to Congress under the Dual Inability
and the Necessary and Proper Clauses. This secret “statutory rewrite” would
therefore face serious hurdles.
The Reagan-Bush-Clinton plans also likely entail legitimacy concerns.
For whatever reason, the memoranda do not place emphasis on the need for
public awareness of the plan, as did the proposals under the Ford and Carter
administrations.145 The result would be that, under the Reagan-Bush-Clinton
plans, an unprecedented crisis in government would be met by a secret
agreement sprung for the first time on a public already reeling from political
uncertainty.146 Moreover, the Speaker and Cabinet’s decision would lack the
imprimatur of Congress, which, in the context of succession and disability,
has been seen as a proxy for the public.147
In theory, the Reagan-Bush-Clinton administration plans, due to the
inclusion of the Cabinet in the decision-making, would seem to entail a
slower process than the CGOPT approach since the latter only provides that
the Speaker take action. In reality, the Reagan administration plan would
almost certainly be effectuated more quickly than the CGOPT since it would
provide cover for the Speaker by including the Cabinet in decision-making.
As a result, the Speaker would be more apt to take action since he would be
less likely to be tarred publicly as a usurper.148
incapacity is addressed by the 1947 statute (and only informed by Section 4 norms), cf.
Interview with Sen. Bayh, supra note 11, at 804 (quoting John Feerick); Second Clinic Report,
supra note 12, at 959 n.256, whereas a disabled-President-and-dead-Vice President situation
is addressed by the Twenty-Fifth Amendment (and only informed by the 1947 statute).
In the dual-incapacity scenario, because it involves the 1947 statute and not Section 4 per
se (in which the Vice President is an essential actor), the fact the Vice President is not part of
the inability determination process is beside the point. With dual incapacity, the issue is that
constitutional norms established by Section 4 should be complied with even if they may not
be legally required. Those norms, it will be recalled, are (1) participation by the successor in
the inability determination, (2) participation by the Cabinet in the process, and (
opportunity for the President to appeal the decision. These constitutional norms would be all
the more important if, in a dual-incapacity scenario, the President attempts to return to office
prior to the Vice President, which would very closely approximate a Section 4 scenario in
which only an incapacitated President is involved.
In a disabled-President-and-dead-Vice President scenario, on the other hand, the analysis
would directly involve Section 4 as the situation involves the President alone being
incapacitated. For this reason, the fact the Vice President would not be involved in the inability
decision-making process would indeed be “at odds with the 25th Amendment procedure” as
the Vice President is essential to such a determination under Section 4. Clinton Contingency
Plans, supra note 95, tab G, at 1; Reagan Contingency Plans, supra note 95, tab G, at 2. In
this situation, the memoranda essentially argue that the 1947 statute would inform application
of this Section 4 situation. Clinton Contingency Plans, supra note 95, tab G, at 1; Reagan
Contingency Plans, supra note 95, tab G, at 2–3.
145. See Memorandum from Bobbie Greene Kilberg, supra note 60, at 9 (advocating that
any letter arrangement be made public); Torricelli Memorandum, supra note 93, at 4–5 (same).
146. Cf. Second Clinic Report, supra note 12, at 934–35.
147. Id. at 973.
148. The Reagan-Bush-Clinton contingency plans also suffer from practical problems.
They omit the PPT, which might bruise the institutional pride of the Senate since the House—
The Reagan-Bush-Clinton administration plans also fare better than the
CGOPT in meeting the constitutional norms established by Section 4 of the
Twenty-Fifth Amendment. The plans include the Cabinet in the
decisionmaking process, as does Section 4. However, the Reagan-Bush-Clinton plans
still fall short of the bar set by the Twenty-Fifth Amendment. They provide
no means for the President (or Vice President) to appeal the decision made
by the Speaker and Cabinet. Section 4, of course, provides such a
In sum, the Reagan-Bush-Clinton administration plans are preferable to
the CGOPT on all three grounds. But, as will be seen, the proposal put
forward in this Article is superior to the Reagan-Bush-Clinton plans because
it rests on surer legal footing and would likely enjoy greater public
D. Congress Passes a Statute Before the Speaker
Becomes Acting President
Yet another option would be for Congress to pass legislation clearly
assigning responsibility for deciding presidential and vice presidential
incapacity.149 The measure would also lay out a postenactment process that
the Speaker would need to follow to make this determination and a process
for how the President and Vice President could regain office. Upon adoption
of the bill, the Speaker (or other statutorily named designee) would follow
the guidelines of the legislation and, upon the process’s completion, the
Speaker would become Acting President. Assuming the statute is otherwise
constitutional, the measure has the benefit of being based upon reliable
constitutional authority150 and it would likely enjoy political legitimacy. The
problem is that it is fatally flawed due to its impracticality.
Ex ante legislation has the obvious advantage of being based on solid
constitutional footing. As the measure would address head-on how to deal
with dual incapacity, it would draw authority from the Dual Inability and the
Necessary and Proper Clauses. The bill would simply amend the 1947
Moreover, having Congress—as the people’s representatives—determine
the means for deciding presidential and vice presidential inability would help
ensure that this approach would enjoy political legitimacy.151 The
determination would involve a public process undertaken by the nation’s
representatives, not a secret arrangement sprung suddenly on the citizenry.152
Short of a special election, which would be wholly impracticable given the
immediate need for a President, having Congress weigh in would seem the
most democratic approach to installing an Acting President.
as represented by the Speaker—would be included in decision-making but not the upper
149. See Feerick, supra note 3, at 939.
150. See supra Part II.
151. See Second Clinic Report, supra note 12, at 973.
152. See id. at 934–35, 973.
The advantages of constitutionality and legitimacy are easily overcome,
however, by this approach’s practical limitations. The reality is that this
option would ensure a de facto lapse in executive authority. Passing a statute
is not usually a brisk process. Moreover, even if Congress passed legislation
on the very day that the dual incapacity began—a highly unlikely event—it
would take at least eleven days before there would be a functioning chief
executive.153 That would be because, without a functioning President,
legislation takes ten days to be enacted (not counting Sundays).154 Eleven
days without a functioning chief executive is far too long. And that does not
even include the time it would take to implement the dual-incapacity
mechanism created by the statute.
All of this, of course, assumes Congress would be in session. The House
and Senate are often out of session, and it takes time for them to assemble.
If Congress were out of session and the United States were involved in a
crisis of some sort that required immediate presidential leadership, waiting
for Congress to reconvene and legislate would not make sense. If one factors
in the implementation of the inability process created by such a statute, the
American public could be without a President for weeks. Thus, while an ex
ante statute has the benefits of clear constitutionality and solid political
legitimacy, it utterly fails as a practical matter.
A final alternative could be the impeachment process. With dual
incapacity, both the President and Vice President would need to be
impeached and removed. This approach would not work well for several
For one, much like the previous option, it would be a highly
timeconsuming exercise and the nation would need a chief executive
immediately. Impeachments, requiring extensive fact finding and
investigation, are typically time-consuming affairs.155 Thus, as a practical
matter, impeachment fails as an option for the same reason that passing an ex
ante statute would also fall short.
Furthermore, this approach carries with it constitutional problems.
Foremost among them is that removal from office for incapacity would seem
to fall outside of the express language of “high crimes and misdemeanors.”156
Moreover, while there was some support for use of the impeachment process
in the public debates that preceded the Amendment in the 1950s and early
1960s,157 the legislative history of the Twenty-Fifth Amendment is less
favorable to impeachment as an inability option.158 Indeed, had the
impeachment process been thought sufficient to address inability, there
would have been no need for the Amendment in the first place.
In addition, impeachment involves removing the President and Vice
President permanently from their positions.159 As such, it lacks the flexibility
of the approach recommended in this Article. For example, what would
happen if the President and Vice President both awoke from comas? Had
they been impeached and removed, they would not be able to return to office.
Even if impeachment were to be interpreted broadly and pragmatically to
permit its use to resolve a dual-incapacity situation, it would prompt serious
concerns regarding political legitimacy. This is because the public rightly
associates impeachment with malfeasance.160 To remove an incapacitated
President and Vice President from office would almost certainly stigmatize
them at a time when there would likely be a great outpouring of sympathy
for the officeholders and their families.161 Moreover, there has never been a
simultaneous impeachment of a President and Vice President, which would
add further confusion and disquiet to an already unprecedented and
exceedingly difficult situation.162 As with the four prior options,
impeachment falls short in the context of addressing dual incapacity.
IV. THE RECOMMENDED APPROACH:
THE SPEAKER, PRESIDENT PRO TEMPORE, AND CABINET DETERMINE DUAL
INCAPACITY AND REQUEST CONGRESSIONAL RATIFICATION This Article recommends that the Speaker formally initiate action. His first step would be to consult with the PPT and the Cabinet and for the group to come to a decision.163 Following agreement by the Speaker, the PPT, and
Herbert Brownell, Att’y Gen.); Presidential Inability, 42 Op. Att’y Gen. 69, 91 (
FEERICK, supra note 4, at 51, 127 n.284, 365; The President’s News Conference, PUB. PAPERS
241, 245 (Apr. 3, 1957); Brownell, supra note 12, at 197–98, 201, 204; John D. Feerick, The
Problem of Presidential Inability—Will Congress Ever Solve It?, 32 FORDHAM L. REV. 73,
158. See 1965 Senate Hearing, supra note 60, at 32 (statement of Sen. Roman Hruska); id.
at 61 n.3 (statement of Lewis F. Powell, Jr., President-Elect, American Bar Association); see
also Presidential Inability and Vacancies in the Office of Vice President: Hearings on S.J.
Res. 13 et al. Before the Subcomm. on Constitutional Amendments of the S. Comm. on the
Judiciary, 88th Cong. 24 (1964) (statement of Sen. Kenneth Keating); Presidential Inability:
Hearings on S.J. Res. 28, S.J. Res. 35, and S.J. Res. 84 Before the Subcomm. on Constitutional
Amendments of the S. Comm. on the Judiciary, 88th Cong. 58–59 (1963) (statement of Sen.
159. See FEERICK, supra note 4, at 51.
160. See Brownell, supra note 12, at 201; see also Feerick, supra note 157, at 115.
161. Cf. Brownell, supra note 12, at 201.
162. The nation was faced with the prospect of dual impeachment in 1973 when both
President Richard Nixon and Vice President Spiro Agnew were simultaneously under
investigation for criminal wrongdoing. See JULES WITCOVER, VERY STRANGE BEDFELLOWS:
THE SHORT AND UNHAPPY MARRIAGE OF RICHARD NIXON AND SPIRO AGNEW 297 (2007). Both
resigned before impeachment and removal could take place.
163. Cf. Feerick, supra note 1, at 21; Second Clinic Report, supra note 12, at 965–66. The
group would likely consult with others such as relatives of the President and Vice President,
doctors, White House staff, and government attorneys. See, e.g., Feerick, supra note 1, at 21.
a majority of the Cabinet that the Speaker (or another successor) should
become Acting President, the group would call for Congress to ratify the
decision they made and the process they followed.
A. Arguments in Favor of This Approach
The group’s position would be legally defensible but far from
unassailable.164 As will be discussed, the legal opinion should emphasize (1)
the Speaker’s authority, such as it is, under the CGOPT and the 1947 Act’s
legislative history, (2) the PPT’s debatable authority under the CGOPT as it
relates to the Vice President, and (
) compliance with Twenty-Fifth
Amendment norms that provide for Cabinet participation in an executive
branch inability determination. The group should then publicly announce its
decision, articulate its legal position, and formally request legislation from
The legislative request should include the following elements: (1)
ratification of the process and the decision arrived at by the Speaker, PPT,
and majority of the Cabinet, (2) adoption of a statutory process patterned after
Section 4 of the Twenty-Fifth Amendment whereby the President and Vice
President can regain their offices, and (
) establishment of a procedure for
determining future cases of dual incapacity (including anticipated dual
incapacity). The request should also include proposed internal rule changes
in each chamber of Congress to require a two-thirds vote in each body to
overturn a misguided declaration by either the President or Vice President as
to their fitness to return to office. Thus, the proposed statute would continue
the Twenty-Fifth Amendment presumptions that the two incapacitated
officeholders may appeal the initial incapacity decision and should be able to
return to their positions when they believe they are ready, subject to certain
checks and balances.166
a. Inclusion of the Cabinet
As discussed earlier, in this setting the Speaker may well draw authority
from the CGOPT, such as it is. But the question remains: why does the
Cabinet need to participate in this process? There are several potential
reasons. First, participation by Cabinet members would be justified on the
grounds that, as members of the line of presidential succession, they too could
conceivably need to act as successor and take action under the CGOPT. It is,
after all, the contingent grant-of-power theory and each member of the group
(unless otherwise disqualified) could become Acting President under certain
circumstances. They would need to be kept apprised of such circumstances
164. See supra Part III.
165. Cf. LUCIUS WILMERDING, JR., THE SPENDING POWER: A HISTORY OF THE EFFORTS OF
CONGRESS TO CONTROL EXPENDITURES 19, 101–02, 193 (1943) (discussing the occasional
need of the President to transgress statutes during emergencies).
166. See U.S. CONST. amend. XXV, § 4.
and be ready to act. The Speaker might also be seen as cloaking the other
participants in his own contingent grant of power (CGOP).
Second, even though the Twenty-Fifth Amendment does not encompass
dual incapacity,167 structural factors from the Amendment should be
imported into this decision-making process because presidential removal for
incapacity is involved. These factors are that there should be (1) participation
by the successor in the inability determination, (2) participation by the
Cabinet, and (
) an opportunity for the President to appeal the decision.
These constitutional norms should not be breached simply because the Vice
President also happens to be incapacitated.168 Having the Speaker, PPT, a
majority of the Cabinet, and ultimately Congress decide satisfies these
The final rationale for Cabinet inclusion stems from practical
considerations.169 The Speaker, the PPT, and Cabinet members each have a
potential stake in the decision-making, which makes their inclusion
important. For example, suppose the Secretary of State believes that
legislative succession is unconstitutional and wishes to overturn the
executive branch’s longstanding position on the matter.170 The Speaker, the
PPT, and a majority of the Cabinet would need to resolve this matter in their
deliberations.171 Everyone with a stake in the outcome of that decision
should be included.
b. Inclusion of the PPT
Inclusion of the Cabinet seems fairly intuitive given the provisions of
Section 4 of the Twenty-Fifth Amendment and the fact they are the most
senior, nonincapacitated members of the executive branch, but what about
the PPT? Why would he be included? Perhaps the better question is why
would he not be? First, as the next in the line of succession after the Speaker,
the PPT has a potential link to the CGOPT, indeed a closer one than members
of the Cabinet.172 After all, if the Speaker is unable to serve as Acting
President or does not otherwise qualify, the PPT would need to draw upon
the very same CGOPT to initiate action to become Acting President.
167. See, e.g., Interview with Sen. Bayh, supra note 11, at 804; supra Part I.
168. The high procedural hurdles in the impeachment process further reinforce the theory
that there should be a procedural floor that should be factored in when considering removal of
a President. See Brownell, supra note 12, at 209.
169. Another practical factor is simply that the Speaker can and should consult with
whomever he wants while making the incapacity determination. Cf. Presidential Inability, 42
Op. Att’y Gen. 69, 93 (
) (discussing the comparable right of the Vice President to make
a determination of presidential inability); Brownell, supra note 12, at 203.
170. See supra note 8 and accompanying text; infra Part V.A.
171. It would be challenging for individuals outside of the Speaker, PPT, and Cabinet
secretaries to mount a political or legal challenge to the Speaker becoming Acting President
in favor of the Secretary of State if the latter had already conceded that the Speaker has the
172. This, of course, assumes that legislative succession is constitutional and, as a purely
abstract legal matter, it may not be. See supra note 8 and accompanying text. That said, there
are serious practical reasons why the PPT would not be easily excluded from the line of
succession. See infra Part V.A.
A hypothetical helps illustrate this in more tangible terms. Assume the
PPT is excluded from the Speaker’s consultations with the Cabinet. During
the deliberations, doctors inform the Speaker and the Cabinet that the
President and Vice President are likely to regain their capacity within six
weeks. The Speaker gets “cold feet” and announces he believes there is a
need for an Acting President but that he does want to resign from the House
as he would be required to do under the 1947 succession law.173 He,
therefore, decides that the succession should skip over him to the PPT.174 At
this point, the CGOP would rest with the PPT, but the PPT would not even
be “in the room.” At this stage, the group would have exhausted its legal
authority to act further. Under Section 4 parallelism, the next in line of
succession is legally essential to make the inability determination and the
next in line would be the PPT. Therefore, as both a theoretical and a practical
matter, this counsels in favor of having the PPT in the decision-making loop.
Otherwise, the Speaker and Cabinet would need to track down the PPT and
waste valuable time bringing him up to speed when he would otherwise be
Second, the PPT may enjoy a form of CGOP in relation to the vice
presidency since, under the Constitution, he takes the place of the Vice
President when the latter is absent from the upper chamber.175 The PPT’s
theoretical authority in this regard would bolster that of the Speaker and the
Cabinet in their decision-making since the group is deciding not only
presidential incapacity but also vice presidential incapacity.176
Third, from the Speaker’s standpoint, having the PPT in the room might
be helpful if questions over the lawfulness of legislative succession arise.
Indeed, excluding the PPT from deliberations would implicitly discredit that
very principle. If one believes in the constitutionality of legislative
succession, it is difficult to explain the rationale for keeping the second in the
line of succession out of the deliberations.
173. 3 U.S.C. § 19(a)–(b) (2012). The Speaker and PPT are not compelled to serve as
Acting President; they can decline the position. See Fortier & Ornstein, supra note 44, at 1003–
05; Second Clinic Report, supra note 12, at 948.
174. This is not as outlandish as it may seem. The uncertain duration of their potential time
as Acting President might lead the Speaker and PPT to conclude that it is not worth the risk of
possibly ending their congressional careers. See Fortier & Ornstein, supra note 44, at 1003–
175. See U.S. CONST., art. I, § 3, cl. 5; Manning, supra note 8, at 149. This point benefitted
from a fruitful discussion with Professor Brian Kalt. Underscoring the concept of the PPT as
the Vice President’s successor in certain settings is that during periods of vice presidential
vacancies, PPTs have been routinely termed “Acting Vice President” in Congress and in the
press. See, e.g., CONG. GLOBE, 40th Cong., 2d Sess. 1699 (1868) (statement of Sen. Dixon);
The Matthews Committee, Its Members Announced by Acting Vice-President Ferry, N.Y.
TIMES, June 9, 1878, at 1; cf. SILVA, supra note 8, at 23–24. In modern Senate practice, PPTs
rarely preside over the Senate but the textual linkage between the Vice President and PPT
remains very much in place.
176. In a sense, the PPT’s CGOP might even be preferable to the Speaker’s as the PPT’s
authority is constitutionally based and not vulnerable to legal challenge as is the Speaker’s,
which is based upon a statute that some believe is unconstitutional. See supra note 8 and
Finally, if every member in the line of succession but the PPT is consulted
and helps decide that the Speaker should become Acting President, it invites
public or private sniping from the PPT and his allies in the Senate majority.
This would seem particularly likely if the Senate and House were controlled
by different political parties. Criticism coming from the next in line of
succession could prove highly corrosive to the legitimacy of the Acting
President’s ability to govern. Including all possible claimants to the
presidency would likely lessen the possibility of criticism from other
potential successors, making the group decision politically harder to oppose.
Exclusion of the PPT might also offend the institutional pride of the Senate
as a whole. In effect, the House—as represented by the Speaker—could be
seen as having been included in the dual-inability deliberations, but not the
Senate. Including the PPT would also likely help with the retroactive
legislative effort. Excluding him might hinder such an undertaking.
c. Inclusion of Congress
The next step—retroactive congressional sanction of the process followed
and decision rendered—has the benefit of enhancing both the legality and the
legitimacy of the actions taken. As a constitutional matter, securing
congressional approval of the Speaker, PPT, and Cabinet’s actions would
cure any constitutional defects. This is because the legislation would be
based on the Dual Inability177 and Necessary and Proper Clauses,178 which
authorize Congress to take action in this area. Ratification, which would
include a proposed mechanism for the President and Vice President to regain
their jobs, would also satisfy Section 4 constitutional norms.
The post hoc ratification of extraordinary presidential measures is firmly
grounded in law and historical precedent. With respect to the law, post hoc
congressional ratification has been sanctioned by the Supreme Court on
several occasions and would give support to the actions of the Speaker, PPT,
and a majority of the Cabinet.179
Regarding historical precedent, the actions taken and justifications given
by two of the nation’s foremost presidents and political thinkers reflect the
viability of taking action in extraordinary circumstances and then seeking
post hoc ratification. President Thomas Jefferson’s effort to acquire the
Louisiana Territory from France in 1803 is one such example.180 In that
instance, Jefferson took steps to commit the nation to purchase the French
land even though there was no express constitutional provision granting the
177. U.S. CONST. art. II, § 1, cl. 6.
178. Id. art. I, § 8, cl. 18.
179. See, e.g., Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 119 (1947);
Brooks v. Dewar, 313 U.S. 354, 357, 360–61 (1941); Isbrandtsen-Moller Co. v. United States,
300 U.S. 139, 147 (1937); see also Robert L. Borosage, Para-Legal Authority and Its Perils,
40 L. & CONTEMP. PROBS. 166, 177–78 (1976).
180. See BAILEY, supra note 34, at 176–94.
President (or indeed the nation) the authority to acquire territory from another
Jefferson himself believed he was acting beyond the Constitution’s writ.
He conceded, “The Constitution has made no provision for our holding
foreign territory, still less for incorporating foreign nations into our Union.
The executive in seizing the fugitive occurrence which so much advances the
good of their country, have done an act beyond the Constitution.”182
Yet, Jefferson also recognized that time was of the essence given the
French diplomatic posture.183 He saw that adding the Louisiana Territory to
the United States would double the size of the nation and resolve pivotal
security and economic concerns for the United States by ensuring access to
the Mississippi River and the Gulf of Mexico. The President was faced with
extraordinary circumstances and he needed to act despite the seemingly
extraconstitutional nature of the steps he took. He committed the nation and
then sought congressional sanction.
In so doing, Jefferson pleaded with one lawmaker: “I pretend to no right
to bind you: you may disavow me, and I must get out of the scrape as I can:
I thought it my duty to risk myself for you.”184 The President advocated that
the Senate sanction his actions through the proposed treaty with France he
The Legislature is casting behind them metaphysical subtleties, and risking
themselves like faithful servants, [who] must ratify & pay for it, and throw
themselves on their country for doing for them unauthorized, what we know
they would have done for themselves had they been in a situation to do
Ultimately, the Senate gave its approval to the treaty, and Congress as a
whole implemented the Purchase through a number of measures, essentially
curing any legal defects caused by Jefferson’s unilateral actions.186
Another example from the Jefferson presidency is equally instructive. In
1807, an American vessel, the USS Chesapeake, was attacked by a British
ship, signaling that hostilities were at hand.187 Immediately afterward,
Jefferson took steps on his own accord to prepare the nation for war, which
involved the commitment of federal funds without congressional
appropriation.188 As noted by one authority, Jefferson “made no effort to
defend the purchases of supplies as being legally authorized.”189
At the time, Jefferson explained to Congress that
[t]he moment our peace was threatened, I deemed it indispensable to secure
a greater provision of those articles of military stores with which our
magazines were not sufficiently furnished. To have awaited a previous and
special sanction by law would have lost occasions which might not be
retrieved. I did not hesitate, therefore, to authorize engagements for such
supplements to our existing stock as would render it adequate to the
emergencies threatening us; and I trust that the Legislature, feeling the
same anxiety for the safety of our country, so materially advanced by this
precaution, will approve, when done, what they would have seen so
important to be done, if then assembled.190
As with the Louisiana Purchase, Congress ratified Jefferson’s actions after
Three years later, Jefferson justified his actions in a letter:
After the affair of the Chesapeake, we thought war a very possible result.
Our magazines were ill provided with some necessary articles, nor had
any appropriations been made for their purchase. We ventured, however,
to provide them, and to place our country in safety; and stating the case to
Congress, they sanctioned the act.
. . . .
. . . It is incumbent on those only who accept of great charges, to risk
themselves on great occasions, when the safety of the nation, or some of its
very high interests are at stake. An officer is bound to obey orders; yet he
would be a bad one who should do it in cases for which they were not
intended, and which involved the most important consequences. The line
of discrimination between cases may be difficult; but the good officer is
bound to draw it at his own peril, and throw himself on the justice of his
country and the rectitude of his motives.192
Unilateral presidential actions, such as responding to the Chesapeake
situation, were fully justified to Jefferson. To him, it
constituted a law of necessity and self-preservation, and rendered the salus
populi supreme over the written law. The officer who is called to act on
this superior ground, does indeed risk himself on the justice of the
controlling powers of the constitution, and his station makes it his duty to
incur that risk. But those controlling powers, and his fellow citizens
generally, are bound to judge according to the circumstances under which
188. See id.
190. 17 ANNALS OF CONG. 14, 17 (1807); see also CURRIE, supra note 182, at 98–99;
SOFAER, supra note 184, at 172.
191. See 17 ANNALS OF CONG. 825, 850, 852–53 (1807); see also SOFAER, supra note 184,
192. Letter from Thomas Jefferson to John B. Colvin (Sept. 20, 1810), in 4 THE FOUNDERS’
CONSTITUTION 127, 127–28 (Philip B. Kurland & Ralph Lerner eds., 2000 ed.).
he acted. They are not to transfer the information of this place or moment
to the time and place of his action; but to put themselves into his
Thus, Jefferson reasoned that extraordinary measures may place the
President in a position where he believes he must act immediately and take
legally questionable steps to protect the nation. In such circumstances, the
third President believed it was incumbent on the chief executive to request
that Congress ratify such executive actions.
Nor is this the only occasion when Congress has legally cured questionable
executive branch action in a time of necessity.194 At the beginning of the
Civil War, President Abraham Lincoln unilaterally spent federal monies
without appropriation, dramatically expanded the size of the Army and Navy,
established a blockade against the South, and suspended habeas corpus.195
Unilateral presidential actions in this vein—though necessary at the time—
were highly suspect from a constitutional standpoint.196 Lincoln recognized
this. As such, he expressed in a message to Congress that
[t]hese measures, whether strictly legal or not, were ventured upon under
what appeared to be a popular demand and a public necessity, trusting then,
as now, that Congress would readily ratify them. It is believed that nothing
has been done beyond the constitutional competency of Congress . . . .197
Ultimately, following his request, Congress legitimized his actions.198
Lincoln’s actions with respect to the blockade against the South were
subsequently litigated before the Supreme Court and Lincoln and Congress’s
194. In the mid-1840s, John C. Fremont—then an Army officer—was ostensibly deployed
on a mission of scientific discovery to California. See 2 HENRY BARTHOLOMEW COX, WAR,
FOREIGN AFFAIRS, AND CONSTITUTIONAL POWER 157 (1984). While he was in the region, he
claimed certain Mexican territory to be part of the United States and performed “arguably . . .
warlike act[s].” Id. at 157–61. Fremont’s actions may or may not have been authorized by
senior officials in the executive branch. Id. Nevertheless, Congress subsequently provided
retroactive sanction for what he had done. Id. at 160–61. Similar retroactive approval took
place regarding the American liberation of a Hungarian citizen, Martin Koszta, from an
Austrian vessel in 1853, an act which could have prompted war. See id. at 163–64. In 1873,
the Grant administration unilaterally expended funds beyond appropriated levels in
anticipation of potential hostilities with Spain. WILMERDING, supra note 165, at 16–17.
Congress later ratified these actions as well. Id. In 1926, President Calvin Coolidge reallocated
monies designated specifically for combatting animal disease and provided them to assist
impoverished farmers in the wake of major storms. Id. at 17–19. The next year, Congress
ratified his actions. Id. at 18–19. Similarly, in 1906, 1913, 1922, and 1925, Congress ratified
unilateral presidential actions that had also been taken in order to combat the effects of natural
disasters. Id. at 17, 18–19 n.31.
195. See, e.g., RANDALL, supra note 34, at 51–52; CLINTON ROSSITER, CONSTITUTIONAL
DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES 224–30 (reprt. ed. 1963).
196. See, e.g., RANDALL, supra note 34, at 51–53; ROSSITER, supra note 195, at 224–30.
197. Abraham Lincoln, Special Session Message, July 4, 1861, in 7 A COMPILATION OF THE
MESSAGES AND PAPERS OF THE PRESIDENTS 3221, 3225–26 (James D. Richardson ed., 1897).
198. See Act of Aug. 6, 1861, ch. 63, § 3, 12 Stat. 326. Nine decades later, Justice Robert
Jackson, in his concurrence in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952),
maintained that Lincoln’s actions regarding the suspension of habeas corpus had also been
cured by retroactive legislation. Id. at 637 n.3.
actions were vindicated in the Prize Cases199 decision. The Court reasoned
in 1861, we find Congress . . . “approving, legalizing, and making valid all
the acts, proclamations, and orders of the President, &c., as if they had been
issued and done under the previous express authority and direction of the
Congress of the United States.”
Without admitting that such an act was necessary under the
circumstances, it is plain that if the President had in any manner assumed
powers which it was necessary should have the authority or sanction of
Congress, that on [a] . . . well known principle of law . . . this ratification
has operated to perfectly cure the defect.200
A situation involving simultaneous presidential-vice presidential
incapacity would constitute a crisis in governance in its own right since the
country would be without a functioning President. The circumstances would
be even more dire if matters required the President’s immediate attention
(e.g., how to respond to a military threat). As such, dual incapacity would
warrant similar unilateral action because, in Jefferson’s words, “the safety of
the nation [would be] . . . at stake.”201
In the case of dual incapacity, the Speaker, PPT, and Cabinet would be
following Jefferson’s and Lincoln’s lead by taking legally debatable steps by
naming the Speaker the Acting President. But, also like Jefferson and
Lincoln, they would attempt to have their actions cured by sending a message
to Congress requesting, among other things, subsequent legislative approval
of their actions.
The proposal in this Article would also have the benefit of being politically
legitimate. Under this approach, PPT and Cabinet approval would be needed
before the Speaker would become Acting President. In several ways, that
adds political legitimacy to the proceedings.202 First, this initial step
essentially follows the model by which incapacity is determined if the
President alone is thought to be unable to function in office. Section 4 of the
Twenty-Fifth Amendment requires that the Vice President secure the
Cabinet’s approval before the former can become Acting President, and, if
the incapacity is contested, Congress then decides the matter.203
The approach outlined in this Article would do largely the same thing: it
would provide for a joint Speaker-PPT-Cabinet decision. The difference is
that this proposal would include even greater checks and balances than
Section 4. It includes an additional actor in the review process—the PPT—
199. 67 U.S. (2 Black) 635 (1863); see also RANDALL, supra note 34, at 55–56.
200. Prize Cases, 67 U.S. at 670–71 (second emphasis added) (quoting Act of Aug. 6, 1861,
ch. 63, § 3, 12 Stat. 326).
201. Letter from Thomas Jefferson to John B. Colvin, supra note 192, at 127.
202. See Feerick, supra note 1, at 20–21.
203. U.S. CONST. amend. XXV, § 4; see also Clinton Contingency Plans, supra note 95, at
2; Reagan Contingency Plans, supra note 95, at 2–3.
and provides a means for the President and Vice President to get their jobs
back. Indeed, Congress would be brought into play even if the matter were
uncontested by the President or Vice President. This enhanced parallelism
should reassure the American public that, while the situation would
essentially be without precedent, policymakers would be following a familiar
path, one patterned after the Twenty-Fifth Amendment but with even more
Further legitimacy would be added by Congress providing a statutory
mechanism by which the President and Vice President could regain office.
Ideally, this statutory process would also mimic Section 4 of the
Second, securing the PPT and the Cabinet’s approval would signal that the
Speaker was not engaged in a coup. It would demonstrate that a deliberative
process had taken place regarding incapacity and that the decision had been
made with the approval of presidential loyalists (i.e., the Cabinet)204 who are
themselves linked to the electorate through their Senate confirmations. The
Senate would also be represented in the deliberations through the PPT.
Perhaps even more powerful from a political-legitimacy standpoint would
be that the Speaker, PPT, and Cabinet’s decision would be subsequently
blessed by the nation’s lawmakers, even if the President and Vice President
did not contest their own incapacity. Members of Congress obviously
represent the American people as a whole. Therefore, providing the
legislative branch with such a key role in this process would be a way for the
American public to participate through their elected representatives.205
As demonstrated above,206 in a dual-incapacity setting, the country simply
cannot wait for Congress to pass a statute before an Acting President is
named. Given the need to minimize any de facto interregnum, the executive
branch would need an Acting President immediately.
On the other hand, if it were obvious to the public that both the President
and the Vice President were incapacitated, the Speaker of the House—as the
next in line to succession—would be able to act with dispatch. After the
Speaker gained the approval of a majority of the Cabinet and the PPT and
notified Congress, the Speaker would immediately step into the role of
Acting President. In this way, the length of the de facto interregnum would
be greatly minimized. Then Congress could take action to ratify what had
Moreover, as a practical matter, the chances of the Speaker taking timely
action in this situation would be enhanced because he would have the
political cover provided not only by the Cabinet but by the PPT.
204. See 1965 Senate Hearing, supra note 60, at 69 (statement of American Bar
Association); Brownell, supra note 12, at 200.
205. See Second Clinic Report, supra note 12, at 973.
206. See supra Parts I, III.D.
V. POTENTIAL COUNTERARGUMENTS
There is no ideal solution to an immediate occurrence of dual incapacity.207
The executive branch has not taken public action to provide a mechanism for
such a contingency and Congress has not addressed the matter by statute.
This leaves policymakers with only imperfect options. Not surprisingly,
there are several potential counterarguments that could be marshalled against
the position advocated in this Article.
A. Legislative Succession Is Unconstitutional
One possible criticism is that having the Speaker as a central actor in the
proposed solution to dual incapacity is misguided as the 1947 presidential
succession statute may unconstitutionally place legislative officials in the line
of succession.208 This concern may be particularly acute if the Speaker
belongs to a different political party from the President and Vice President.
This in turn might encourage a challenge to the statute and unduly complicate
resolution of a dual-incapacity situation. For several reasons this potential
counterargument is flawed.
By having the Speaker, PPT, and Cabinet consult prior to any decision on
dual incapacity, this Article’s proposal provides a forum whereby the rival
claimants can decide the question in a deliberative fashion. Indeed, the
conclave might conclude for any number of reasons that the Secretary of
State (or next eligible Cabinet secretary) should become Acting President
rather than the Speaker or PPT.
That said, there are several practical reasons why it would be difficult for
the Secretary to contest the legal claim of the Speaker to become Acting
President. For one, the Secretary’s claim would have to overturn the
longstanding executive branch interpretation that legislative succession is in
fact constitutional.209 Legislative succession was first signed into law by
President George Washington in 1792.210 After removal of legislative branch
officials from the line of succession in 1886, President Harry Truman
proposed that they be put back in in what ultimately became the 1947 Act,
the constitutionality of which was defended by the Acting Attorney General
at the time.211 As noted earlier, President Johnson entered into a letter
arrangement with Speaker McCormack whereby the latter would have
assumed the presidency if the former had become incapacitated.212 In 2007,
207. See supra note 11 and accompanying text.
208. See supra note 8 and accompanying text. This segment benefitted from a
thoughtprovoking discussion with Professor Akhil Amar.
209. Cf. Manning, supra note 8.
210. Presidential Succession Act of 1792, ch. 8, 1 Stat. 239, 240 (repealed 1886); cf.
Manning, supra note 8, at 150–53.
211. See 93 CONG. REC. 7692–93 (1947) (providing the text of President Truman’s two
messages to Congress in support of legislative succession); id. at 8621–22 (providing the text
of a letter from Douglas W. McGregor, Acting Attorney General, to Earl C. Michener,
Chairman, Committee on the Judiciary, House of Representatives, dated June 11, 1947).
212. Johnson Provides for a Disability, supra note 74 (quoting the letter agreement on
presidential succession between President Lyndon Johnson and Speaker of the House John
President George W. Bush issued the National Continuity Policy
Implementation Plan.213 It makes clear that the executive branch views
legislative succession as entirely lawful. The document emphasizes the
[f]acilitat[ing] effective implementation of . . . the Presidential Succession
Act of 1947 (3 U.S.C. § 19). The executive branch will ensure that
appropriate support is available to the Vice President, the Speaker of the
House, and the President Pro Tempore of the Senate. The Vice President,
the Speaker of the House, and the President Pro Tempore should be
prepared at all times to execute their role as a successor President.214
Elsewhere the document notes that with respect to succession, “[f]or the
Presidency, the Constitution and statute establish the Order of Presidential
Succession for officials who meet the constitutional requirements as follows:
[t]he Vice President[,] Speaker of the House[,] President Pro Tempore of the
Senate.”215 In the years since the 1947 Act, other executive branch legal
opinions and documents from both the Department of Justice and the Office
of the Counsel to the Vice President have assumed the constitutionality of
Indeed, the State Department’s own website states that “the Secretary of
State is fourth in line of succession after the Vice President, the Speaker of
the House, and the President pro tempore of the Senate.”217 A State
Department spokesperson recently reiterated that point.218 It would be
exceedingly difficult for a Secretary of State to claim that he should be the
Acting President when decades of executive branch public statements and
legal opinions and the State Department’s own website say otherwise.
McCormack); see also FEERICK, supra note 4, at 323–33 (quoting a legal opinion by the
Department of Justice defending the legality of the arrangement).
213. See HOMELAND SEC. COUNCIL, supra note 73, at iii.
214. Id. at 42.
215. Id. at 7.
216. See Memorandum from Ralph W. Tarr, Acting Assistant Attorney Gen., Office of
Legal Counsel, to the Attorney Gen. 69 (June 14, 1985), https://www.justice.gov/file/
23736/download [https://perma.cc/A2QX-ZJXT] (referencing the Speaker and PPT as part of
the statutory line of succession); Wiggins Memorandum, supra note 91, at 8 (proposing that
the Speaker participate in determining vice presidential incapacity); see also U.S. DEP’T OF
JUSTICE, 200TH ANNIVERSARY OF THE OFFICE OF THE ATTORNEY GENERAL 35 (1990) (“[T]he
Attorney General ranked fourth . . . in the line of succession to the Presidency. . . . Congress
[later] passed a law making the Speaker of the House and the president pro tempore of the
Senate next in line of succession after the Vice-President.”).
217. Who Is the Secretary of State,? DISCOVER DIPL., https://diplomacy.state.gov/
discoverdiplomacy/diplomacy101/people/170354.htm [https://perma.cc/9RPX-C95D] (last
visited Nov. 19, 2017); see also Contact Us, U.S. DEP’T ST.,
https://register.state.gov/contactus/ [https://perma.cc/6FNV-RTUR] (last visited Nov. 19,
2017) (“The Secretary of State [is] . . . fourth in line of presidential succession”).
218. Karen DeYoung, Trump Contradicts Tillerson on North Korea, the Latest in a Series
of Put-Downs, WASH. POST (Oct. 1, 2017),
[https://perma.cc/SFL8-5U3Z] (quoting a State Department spokesperson as noting that the
Secretary of State is “fourth in line to the presidency”).
Moreover, there have been executive branch protocols and contingency
plans in place for some time that have grown up around the notion of
legislative succession and have institutionalized it.219 Indeed, the
ReaganBush-Clinton contingency plans, formulated by the White House Counsel,
state that “[t]he answer to the question of who would govern [in a dual
incapacity scenario] . . . would appear to be . . . that the Speaker of the House
would ‘act as President.’ . . . The goal in [that] situation would be to have
the Speaker act as President.”220 If the contents of these White House
documents are still in place, once again, it would be very hard as a practical
matter for the Secretary of State—in the midst of an unprecedented governing
crisis—to repudiate them.
Legislative succession has also been reiterated by the current
administration. In 2017, President Donald Trump asked PPT Orrin Hatch to
serve as designated survivor and not attend that year’s inauguration.221
For all of these reasons, the Secretary could very well face a major
legitimacy problem if he claims to be Acting President. To the general
public, the Speaker—and not the Secretary—would likely be seen as the next
in line.222 That reality manifested itself in 1981 following the attempted
assassination of President Reagan. During a White House press conference,
Secretary of State Alexander Haig appeared to assert that he was next in the
line of succession after the Vice President.223 This created a media firestorm
and has since become synonymous (fairly or unfairly) with an official
attempting to seize authority he does not possess.224 The specter of Haig’s
219. The Federal Emergency Management Agency, which bears important responsibility
in contingency planning, has long included legislative officials in its efforts. Letter from the
White House Commc’ns Agency to James O. Eastland, President Pro Tempore, U.S. Senate
(Sept. 6, 1972),
https://www.archives.gov/files/declassification/iscap/pdf/2010-081umissdoc28.pdf [https://perma.cc/RX8D-JJYE] (providing a means of White House
coordination among those in the line of succession, including both the Speaker and the
President pro tempore); see also Second Clinic Report, supra note 12, at 958.
220. Clinton Contingency Plans, supra note 95, tab G, at 2; Reagan Contingency Plans,
supra note 95, tab G, at 2–3.
221. Press Release, Sen. Orrin G. Hatch, At the Request of President Trump, Hatch Serves
as Designated Survivor During Inauguration (Jan. 20, 2017), https://www.hatch.
222. See, e.g., KALT, supra note 8, at 84. For typical press treatment of succession, see,
e.g., Mike Allen, Rice Is Named Secretary of State, WASH. POST (Nov. 17, 2004),
[https://perma.cc/B56P-KHKA] (“Rice . . . will be fourth in line of succession to the
presidency . . . .”).
223. Richard V. Allen, When Reagan Was Shot, Who Was ‘In Control’ at the White
House?, WASH. POST (Mar. 25, 2011),
[https://perma.cc/4CGS-CU3N] (“Constitutionally, gentlemen, you have the president, the
vice president and the secretary of state, in that order . . . .”).
224. Cf. KALT, supra note 8, at 96; see also HERBERT L. ABRAMS, “THE PRESIDENT HAS
BEEN SHOT”: CONFUSION, DISABILITY, AND THE 25TH AMENDMENT IN THE AFTERMATH OF THE
ATTEMPTED ASSASSINATION OF RONALD REAGAN 97 (1992) (discussing White House Counsel
Fred Fielding having to correct Haig on the order of succession immediately after the press
conference); Bill McGown, The Al Haig Communication Lesson, HUFFINGTON POST (Apr. 28,
2010, 5:12 AM), https://www.huffingtonpost.com/bill-mcgowan/the-al-haig-communication
assertion would likely hang over any Secretary contending that he—and not
the Speaker—is the lawful successor.
That said, the legitimacy issue may ultimately turn on political context.
For example, if the presidency and Congress were in different partisan hands
and a modern-day Charles Guiteau incapacitated both the President and Vice
President in the name of reversing partisan control of the White House, the
Speaker and PPT might deem it prudent to stand down and defer to the
Secretary of State.225 This is all the more reason why this Article
recommends that all the claimants meet in person to discuss and decide
B. The Approach Violates Separation of Powers
A second possible counterargument might be made that including the
Speaker and PPT in the decision-making process violates separation of
powers.226 Including the Speaker and the PPT in the initial determination
process, as this Article proposes, certainly does violate abstract notions of
separation of powers. But that is only because the 1947 statute does so.227
In a perfect world, the line of succession would stay completely within the
executive branch and run from the Vice President to members of the Cabinet.
It does not, however, and the Speaker and PPT are included.
At the same time, it bears remembering that the text of the Constitution
itself does not reflect an airtight application of separation of powers.228 This
is certainly true in the incapacity realm as Congress is the ultimate arbiter of
presidential incapacity under Section 4 of the Twenty-Fifth Amendment.
Similarly, the Vice President, who is essential to the Section 4 process, is part
of both political branches with his exact constitutional locus varying
depending upon the circumstances.229 The Speaker enjoys the CGOP in
relation to the President by statute, and the PPT would seem to have a
_b_478775.html [https://perma.cc/YH86-47JG] (“What Haig failed to comprehend in the heat
of the moment was the average person’s contempt for someone seemingly using a moment of
crisis for personal gain. At a time when the American people needed to be calmed and
reassured, Haig’s actions achieved the opposite effect. [It] became an indelible black mark on
Haig’s record that no reputation management expert could erase.”); see also Baker &
FitzPatrick, supra note 104, at 841.
225. See KALT, supra note 8, at 83–105.
226. Cf. Brownell, supra note 12, at 199–201; Silva, supra note 119, at 162, 168.
227. The original presidential succession statute from 1792 also violated this theoretical
principle. See Presidential Succession Act of 1792, ch. 8, 1 Stat. 239, 240 (repealed 1886); cf.
Manning, supra note 8, at 150–53.
228. See, e.g., Roy E. Brownell II, A Constitutional Chameleon: The Vice President’s
Place Within the American System of Separation of Powers, Part I: Text, Structure, Views of
the Framers and the Courts, 24 KAN. J.L. & PUB. POL’Y 1, 6–15 (2014).
229. See id. at 1; Roy E. Brownell II, A Constitutional Chameleon: The Vice President’s
Place Within the American System of Separation of Powers, Part II: Political Branch
Interpretations and Counterarguments, 24 KAN. J.L. & PUB. POL’Y 294, 294 (2015). The Vice
President is not an executive branch official all of the time; as President of the Senate, he has
a foot in the legislative branch as well. Therefore, having the Speaker and PPT—as legislative
branch officials—involved in the executive branch inability-determination process is
somewhat less troubling than it might at first seem. See Manning, supra note 8, at 147–50.
constitutionally based form of CGOP in relation to the vice presidency. As
such, they need to be included in the inability determination process.
The only other official who could realistically contest this state of affairs
would be the Secretary of State (or next in the line of succession) under the
legal theory that the Speaker is not the lawful successor.230 As noted, under
such a scenario, the Speaker and the Secretary would be able to pursue their
competing claims when the Speaker, PPT, and Cabinet consult to render the
dual-incapacity decision. The decision of the group should essentially
resolve this constitutional question one way or another.231
C. Requesting Authorization from Congress Is Too Risky
A third potential counterargument would be that seeking congressional
ratification is gilding the constitutional lily. Why potentially invite
constitutional and legitimacy challenges by requesting congressional
ratification? With the heightened partisan tensions of today, what if Congress
were unable or unwilling to act?
This concern is misplaced for several reasons. First, as was seen before,
both the CGOPT and the Reagan-Bush-Clinton plans are far from airtight
from both constitutional and legitimacy standpoints.232 Indeed, the
ReaganBush-Clinton plans openly conceded the shaky legal footing upon which they
were based. Further, if there were any question at all about the
constitutionality and legitimacy of the actions of the Acting President
(especially given the heightened public concern that would precede and
accompany his assumption of office), that doubt would need to be eliminated.
Taking that doubt off the table is what post hoc ratification does. The
rationale is similar to that used in 2009 when President Barack Obama retook
the oath of office after he and Chief Justice John Roberts fumbled the
wording of the oath the first time: to remove any doubt of legality and
legitimacy.233 At the end of the day, Congress has the authority in this realm
and, therefore, only Congress can ratify the group’s actions.
Second, the legislative lift would likely not be as formidable as might be
thought. Presumably, the Speaker would have little problem assembling a
majority in the House since he would have commanded a majority in the body
immediately before the crisis. The Cabinet and the House acting together in
a crisis atmosphere would likely be able to persuade the Senate, especially
with a venerable member of the majority party of the upper chamber—the
PPT—assisting in the advocacy.
Moreover, Congress would need to legislate anyway to provide a clear and
reliable method for the President and Vice President to regain office.234
230. See supra note 8 and accompanying text.
231. Cf. Calabresi, supra note 8; see also supra Part V.A.
232. See supra Parts III.B–C.
233. Associated Press, Obama Retakes Oath of Office After Flub, NBC NEWS (July 22,
2009, 12:54 PM),
234. It will be remembered that this Article proposes that, in their joint public
announcement, the Acting President, PPT, and Cabinet provide an ad hoc path for the
Indeed, it would be in the interests of lawmakers supporting the President and
Vice President’s return to establish such a statutory process. Legislative
language ratifying the Speaker, PPT, and Cabinet’s actions would be part of
this vital legislation.
From a public advocacy standpoint, the Speaker, PPT, and the Cabinet
would likely hold the upper hand over Congress. They could rightly point
out the reality that someone needs to temporarily lead the executive branch
and no one else is in a position to do so. The group might also emphasize
that the 1947 presidential succession statute makes the Speaker the Acting
President if there is dual incapacity235 and that there is currently a dual
incapacity. Arguably, Congress has already implicitly delegated this
authority to the Speaker; now the Speaker-turned-Acting President—in
conjunction with the PPT and the Cabinet—wishes to make the process
In addition, it is uncertain who the rival claimants would be for
congressional opponents to rally behind. Indeed, those with a potential
interest in the presidency—the PPT and Cabinet members—are central to the
decision-making process and would be supporting the Speaker’s position.
The PPT would need to agree in order for the decision to go forward, and it
is difficult to imagine a Cabinet majority forming in favor of the Speaker if
the Secretary of State—as the next in line of Cabinet succession—did not
concur in judgment.
Furthermore, it would be difficult for Congress to oppose the
Speakerturned-Acting President, PPT, and Cabinet to essentially take the position
that there should be no one to carry out the presidential duties and that there
should remain an uncertain means by which the President and Vice President
could regain office.
It seems hard to imagine that the Speaker, PPT, and Cabinet would move
forward to temporarily replace the President and Vice President unless their
dual incapacity were truly manifest. Members of Congress would not be
blind to the exigency surrounding their actions and would feel tremendous
public pressure to resolve the crisis by supporting the Speaker, PPT, and
President and Vice President to use to return to office until Congress takes action. If the
President and Vice President wish to contest their inability and Congress had not yet provided
a process for them to regain their offices, the President and Vice President could simply declare
that they have regained capacity. If the Acting President, PPT, and Cabinet contest their
declaration, the matter should be sent to Congress with the understanding that Congress would
decide, with any legislative inaction favoring the displaced officeholders. Again, this would
follow Twenty-Fifth Amendment norms. As with Section 4 of the Twenty-Fifth Amendment,
the presumption favors the President and Vice President returning to office, but would subject
their declarations to some checks and balances. This proposed process would be on much
firmer ground, however, if it were provided by statute under authority of the Dual Inability
and Necessary and Proper Clauses.
235. 3 U.S.C. § 19 (2012).
236. A recent example of Congress responding to exigent circumstances involved the
response to the financial crisis in the fall of 2008. Just weeks prior to the election, Congress
took action to try to avert a potential economic freefall even though the solution—temporarily
“bailing out” financial institutions—was wildly unpopular. See David M. Herszenhorn,
If, however, for whatever reason, Congress ultimately did not ratify the
group’s joint decision and provided no method by which the President and
Vice President could return to office, the Speaker would simply remain as
Acting President until either the President or Vice President recovered. The
Acting President’s public posture would remain that he, the PPT, and the
Cabinet acted lawfully and that they had only requested Congress to legislate
out of an abundance of caution.
Indeed, if Congress did not ratify the group’s procedure and incapacity
decision, the Acting President, PPT, and Cabinet could use the failure to their
advantage. The group could assert that this failure to act reflects
congressional acquiescence. In this regard, they could claim this tacitly
demonstrates legislative branch approval of their action.237 Of course, unlike
with secret contingency plans, the group’s actions in this context in the “zone
of twilight” would be public and done with the explicit knowledge of
Congress and the public. Moreover, congressional enactments, such as the
appropriation bill funding White House operations, could be seen as
providing implicit retroactive sanction to what the group had decided.238
Furthermore, the longer the Acting President remains in office, the more
legitimacy he likely stands to gain as the public’s anxiety begins to wane and
the citizenry grows accustomed to him in the White House.
D. Potential Challenges from the Officeholders or Their Families
Another potential counterargument is that a post hoc statute—retroactive
by its very nature—might conceivably be challenged by the family or staff
of the President or Vice President for violating the Bill of Attainder,239 Ex
Post Facto,240 or Due Process Clauses.241
Such constitutional challenges, assuming they clear prudential hurdles (no
small task under the circumstances),242 would be dubious for several reasons.
For one, Congress would be acting based on clear constitutional authority:
the Dual Inability and the Necessary and Proper Clauses. These Clauses exist
alongside the Bill of Attainder, the Ex Post Facto, and the Due Process
Clauses, and must be read in conjunction with them.243 When the
Bailout Plan Wins Approval; Democrats Vow Tighter Rules, N.Y. TIMES (Oct. 3, 2008),
[https://perma.cc/DP9N-MH9U]; Ben Rooney, Bailout Foes Hold Day of Protests, CNN
(Sept. 25, 2008), http://money.cnn.com/2008/09/25/news/economy/bailout_protests/
237. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952)
(Jackson, J., concurring).
238. In situations where the President is allegedly acting without express ex ante legislative
authorization, some federal appellate decisions have indicated that legal defects can be cured
by subsequent implicit legislative action. See, e.g., DaCosta v. Laird, 471 F.2d 1146, 1157 (2d
Cir. 1973); Orlando v. Laird, 443 F.2d 1039, 1042 (2d Cir. 1971).
239. See U.S. CONST. art I, § 9, cl. 3.
240. See id.
241. See id. amend. V.
242. The issue would seem unlikely to be successfully litigated on the merits. See Calabresi,
supra note 8, at 175.
243. See, e.g., Presidential Inability, 42 Op. Att’y Gen. 69, 85 (
constitutional principle that executive power should never lapse is layered on
top of this analysis, legal challenges based on the Bill of Attainder, Due
Process, and Ex Post Facto Clauses would face serious hurdles.
Furthermore, with dual incapacity, neither the President nor Vice President
would suffer a real harm. The Speaker, as proposed in this Article, would
only become Acting President; he would not displace either officeholder.
Thus, neither the President nor Vice President would lose their status,
compensation, or benefits. If the President or Vice President wanted to regain
their capacity, they need only publicly declare it. Congress would decide the
matter if the Acting President, PPT, and Cabinet majority opposed the
declaration, with inaction favoring the disabled officeholders.
Finally, this lack of a tangible harm would be fatal to the Bill of Attainder
and Ex Post Facto challenges, as the former requires a legislative
punishment244 and the latter a criminal penalty to be retroactively
enhanced.245 Neither a punishment nor a criminal penalty is involved with
an incapacity determination. Furthermore, Due Process Clause protections
in a public employment context apply only to those holding statutorily
created positions with civil-service protections; they do not extend to
constitutional officers.246 Such considerations have nothing to do with
deciding inability for the President and Vice President.
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. Ideally, policymakers would take public action to resolve this
matter proactively, in a manner that satisfies legality, legitimacy, and
practicality concerns. But since this has yet to happen, an examination of the
different immediate choices is overdue.
Were a dual incapacity situation to arise suddenly, to resolve this problem,
the Speaker should consult with, and gain the blessing of, the PPT and a
majority of the Cabinet. The group should then jointly authorize executive
branch attorneys to expeditiously craft a legal opinion. With the legal
opinion in hand, the Speaker, the PPT, and the Cabinet should 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 PPT, and the Cabinet should request that Congress ratify the
process the group followed and the decision that they made. They should
also request legislation detailing how the President and Vice President could
reclaim their offices. While imperfect, the solution proposed in this Article
does a better job of satisfying the three key criteria—legality, legitimacy, and
244. See, e.g., United States v. Lovett, 328 U.S. 303, 315 (1946).
245. See, e.g., Calder v. Bull, 3 U.S. 386, 390–91 (1798).
246. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Second Clinic
Report, supra note 12, at 986–87.
A. Letter Arrangements and Contingency Plans in General....... 1037 1 . Practicality ....................................................................... 1037 2 . Legality ............................................................................ 1039
a. Pre-Twenty-Fifth Amendment Letter Agreements ...... 1039 7 . See 3 U.S.C. § 19 ( 2012 ). 8. See id. There have long been questions as to the constitutionality of the 1947 statute .
Constitutional ?, 48 STAN. L. REV. 113 ( 1995 ); Steven G. Calabresi, The Political Question of
Presidential Succession , 48 STAN. L. REV. 155 ( 1995 ); Joel K. Goldstein , Akhil Reed Amar
and Presidential Continuity , 47 HOUS. L. REV. 67 ( 2010 ) ; John F. Manning , Not Proved: Some
Lingering Questions About Legislative Succession to the Presidency, 48 STAN. L. REV. 141
( 1995 ) ; see generally , e.g., BRIAN C. KALT , CONSTITUTIONAL CLIFFHANGERS : A LEGAL GUIDE
FOR PRESIDENTS AND THEIR ENEMIES 88-94 ( 2012 ) ; RUTH C. SILVA , PRESIDENTIAL
SUCCESSION 131- 42 ( 1951 ) ; Seth Barrett Tillman , Interpreting Precise Constitutional Text:
Chafetz's Impeachment & Assassination, 61 CLEV. ST. L. REV . 285 , 338 n. 81 , 341 n. 90 ( 2013 ).
become Acting President during a dual-incapacity setting. See infra Part V.A. 9 . See Amar, supra note 1, at 22; First Clinic Report, supra note 1 , at 23; Goldstein,
supra note 8 , at 71. The statute's shortcomings in this regard reflect those of the original
presidential inability provisions under Article II. See 2 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 427 (Max Farrand ed., 1937 ) (quoting John Dickinson as asking
“What is the extent of the term 'disability' & who is to be the judge of it?”). 10. See First Clinic Report, supra note 1 , at 26- 27 . As to whether this Article's analysis
Id. at 27 (seventh and eighth alterations in original) (quoting THE FEDERALIST No . 41 (James
Madison)) . 16 . Whether Congress would expressly sanction all of the Acting President's governing
Congress. 17. Cf . Second Clinic Report, supra note 12, at 960-62 . 18 . Cf . U.S. CONST. amend. XXV, § 4 . 19 . An appeal of the incapacity determination could be undertaken by the President, the
President . See 3 U.S.C. § 19(c)(2) ( 2012 ). 20 . Cf . U.S. CONST. amend. XXV, § 4. If the President and Vice President are
closely as possible the provisions of Section 4 as such a situation would be very similar to a
Section 4 scenario. 21. In this regard, the bill would need to be enacted without the incapacitated President's
signature. Id. art. I , § 7. This occurred twenty-eight times during President Woodrow Wilson's
illness. See FEERICK , supra note 4 , at 16. 22. Yet another alternative to handling dual incapacity could be to view the incapacitated
office. See, e.g., U.S. Airways, Inc. v. Barnett, 535 U.S. 391 , 409 ( 2002 ) (O'Connor , J. ,
concurring) (“The word 'vacant' means 'not filled or occupied . . . .'” (quoting Vacant, 31. U.S. CONST. amend. XX, §§ 3 - 4 . For more on the Twentieth Amendment , see
generally Brian C. Kalt , Of Death and Deadlocks: Section 4 of the Twentieth Amendment, 54
HARV. J. LEGIS . 101 ( 2017 ). Given that the disputed election of 1800 threatened an
list of constitutional provisions. 32. See Second Clinic Report, supra note 12, at 967-68 . 33 . Kennedy v. Mendoza-Martinez , 372 U.S. 144 , 160 ( 1963 ) ; see also Terminiello v .
Chicago , 337 U.S. 1 , 37 ( 1949 ) (Jackson , J ., dissenting) . 34 . See , e.g., JEREMY D. BAILEY, THOMAS JEFFERSON AND EXECUTIVE POWER 185 ( 2007 )
PROBLEMS UNDER LINCOLN 32 (rev . ed. 1964 ) (“Self-preservation is the first law of national
Powers Under the Constitution, Address Before the American Bar Association (Sept . 1917 ),
in S. Doc. No. 65-105 , at 3 ( 1917 ))). 35 . See President's Power to Fill Vacancies in Recess of the Senate, 12 Op . Att'y Gen.
32 , 38 ( 1866 ) ; Power of President to Fill Vacancies, 3 Op . Att'y Gen. 673 , 675 - 76 ( 1841 ); 4
CONSTITUTION 135- 36 (Jonathan Elliot ed., 3d ed. 1937 ) (statement of Archibald Maclaine at
the North Carolina Convention); Second Clinic Report, supra note 12 , at 936 , 967 - 68 . 36 . See Mississippi v. Johnson , 71 U.S. 475 , 500 ( 1866 ) (stating that “the President is the
executive department”); see also Clinton v. Jones , 520 U.S. 681 , 713 ( 1997 ) (Breyer , J. ,
Judicial Branch , to carry out its public obligations . ”) . 37 . See , e.g., Presidential Succession & Delegation in Case of Disability , 5 Op. O.L.C. 91 ,
93- 99 ( 1981 ); Presidential Inability, 42 Op. Att'y Gen. 69 , 84 ( 1961 ). 38. U.S. CONST. art. II, § 2 . 39 . Id. art. II, § 7 . 40 . Id. art. II, § 2 . 41 . Id. art. II, § 2 , cl . 2 . 61. FEERICK, supra note 4, at 100 (quoting Speaker McCormack) . 62 . See Edwin L. Dale , Jr., Eisenhower Disability Pact Calls for 'Acting President':
Recovered , N.Y. TIMES , Mar. 4 , 1958 , at 1, 17; see also Stephen W. Stathis, Presidential
Disability Agreements Prior to the 25th Amendment, 12 PRESIDENTIAL STUD . Q. 208 , 210
( 1982 ). 63 . See Nelson, supra note 60 , at 87 . 64. See MILLER CTR . COMM'N NO. 4, REPORT OF THE COMMISSION ON PRESIDENTIAL
DISABILITY AND THE TWENTY-FIFTH AMENDMENT 10 ( 1988 ) ; cf . Presidential Succession &
Delegation in Case of Disability , 5 Op. O.L.C. 91 , 98 n. 7 ( 1981 ); William F. Brown &
Clones ,” 75 GEO. L.J. 1389 , 1405 n. 61 ( 1987 ) ; Adam R.F. Gustafson , Presidential Inability
and Subjective Meaning , 27 YALE L. & POL'Y REV . 459 , 479 ( 2009 ). 65 . See , e.g., 1 RICHARD J. PIERCE , JR., ADMINISTRATIVE LAW TREATISE 408 (5th ed.
2010 ) ; A Guide to the Rulemaking Process, OFF . FED. REG.,
[https://perma.cc/U9BM-2LCD ]. 66. See Presidential Inability , 42 Op. Att'y Gen. 69 , 94 ( 1961 ); Goldstein, supra note 8,
at 71-72; Bruce Ackerman, Take Your Paws off the Presidency! , SLATE (July 15 , 2008 , 3 : 35
PM) , http://www.slate.com/articles/news_and_politics/jurisprudence/2008/07/take_your_
paws_off_the_presidency .html [https://perma.cc/4X8D-PVX5]. The author has benefited
greatly from conversations with Professor Joel Goldstein on this subject . 67. See NLRB v. Noel Canning , 134 S. Ct . 2250 , 2559 ( 2014 ); Mistretta v . United States,
488 U.S. 361 , 400 - 01 ( 1989 ); Merriam v . Clinch , 17 F. Cas . 68 , 70 (C.C.S.D.N .Y. 1867 ) (No.
9460); see also Roy E. Brownell II , Don Wallace , Jr.: Burkean Presidentialist, in A
607 , 615 n. 64 ( Borzu Sabahi et al. eds., 2014 ); Michael J . Glennon , The Use of Custom in
Resolving Separation of Powers Disputes , 64 B.U. L. REV. 109 , 115 ( 1984 ); Joel K . Goldstein,
History and Constitutional Interpretation: Some Lessons from the Vice Presidency , 69 ARK.
L. REV . 647 , 656 ( 2016 ). 68 . 343 U.S. 579 ( 1952 ). 69 . Id. at 610- 11 (Frankfurter, J., concurring) . 70 . See , e.g., Noel Canning , 134 S. Ct . at 2559-60; Dames & Moore v . Regan , 453 U.S.
654 , 686 ( 1981 ). 71 . Youngstown , 343 U.S. at 610- 11 . 72 . See First Clinic Report, supra note 1 , at 26- 27 . 73 . Vice President Dick Cheney, for instance, only informed his legal counsel and the
President of his presigned resignation letter . See CHENEY WITH CHENEY, supra note 51 , at 321-
22. For more on the secret nature of contingency plans , see GRAFF, supra note 4 , at 317, 371 -
72 , 375 - 76 , 384 - 86 ; William M. Arkin & Robert Windrem , Secrets of 9/11: New Details of
Chaos , Nukes Emerge, NBC NEWS (Sept. 11 , 2016 , 10 :53 AM), https://www.nbcnews.com/
storyline /9-11-anniversary/secrets-9 -11-new-details-chaos-nukes-emerge-n645711
[https://perma.cc/T64C-4864]. See generally HOMELAND SEC . COUNCIL, NATIONAL
CONTINUITY POLICY IMPLEMENTATION PLAN ( 2007 ), https://www.fema.gov/media-library-
[https://perma.cc/33BQ-8HA5 ]; Ackerman, supra note 66 . 74. See , e.g., Stathis, supra note 62, at 210-12 , 214; Dale, supra note 62, at 1, 17;
Disability Text , N.Y. TIMES , Nov. 14 , 1966 , at 26; Johnson Provides for a Disability: Agrees
with McCormack on Temporary Succession , N.Y. TIMES , Dec. 5 , 1963 , at A1; Joseph A .
Loftus , Kennedy Provides That Johnson Will Act If He Is Incapacitated , N.Y. TIMES , Aug. 11 ,
1961, at A1; Charles Mohr, Johnson Reaches Disability Accord, N.Y. TIMES , Jan. 28 , 1965 , at
3; Text of the Kennedy-Johnson Accord on Succession , N.Y. TIMES , Dec. 6 , 1963 , at 19 . 75. See , e.g., Glennon, supra note 67, at 135-37 . 76 . 453 U.S. 654 ( 1981 ). 77 . Id. at 686 (emphasis added) (quoting United States v . Midwest Oil , 236 U.S. 459 , 474
( 1915 )). 78 . See , e.g., Haig v . Agee , 453 U.S. 280 , 299 ( 1981 ) (“This history of administrative
Executive Orders and regulations, but also by specific presentations . . . .”); Midwest Oil, 236
U.S. at 481 ( “Congress, with notice of this practice and of this claim of [executive branch]
action by Congress .”); see also Glennon, supra note 67, at 135-37 . 79. U.S. CONST. art. I, § 6 , cl . 1 . 80. Youngstown Sheet & Tube Co . v. Sawyer, 343 U.S. 579 , 610 - 11 ( 1952 ) (Frankfurter,
the Constitution”); RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 98
( 1974 ) ; see also Powell v . McCormack , 395 U.S. 486 , 546 - 47 ( 1969 ); Inland Waterways
Corp. v. Young, 309 U.S. 517 , 524 ( 1940 ). 81 . See , e.g., Glennon, supra note 67 , at 135- 37 . The breadth and scope of past
Feerick , supra note 3, at 943. 82. Youngstown , 343 U.S. at 610- 11 . 83 . See Memorandum from Bobbie Greene Kilberg, supra note 60, at 4 (writing in 1975
that “[s]ince the ratification of the 25th Amendment, there is no record of written agreements
between a President and a Vice President”); see also FEERICK , supra note 4, at 344. 84. See infra note 95. 85. See supra note 74 and accompanying text; see also FEERICK, supra note 4, at 359 n.17. 86. See Memorandum from Bobbie Greene Kilberg, supra note 60 , at 2; see also FEERICK ,
supra note 4, at 342. 87. See Presidential Succession & Delegation in Case of Disability , 5 Op. O.L.C. 91 , 103
( 1981 ) ; see also FEERICK, supra note 4 , at 344; Memorandum from Bobbie Greene Kilberg,
supra note 60, at 4 . 88. Albert had Ted Sorenson draft a “comprehensive contingency plan” for him in case
Sorensen to the Speaker of the House (Nov. 8, 1973) (on file with the University of Oklahoma,
Legislative , Box 191, Folder 25); see also Ted Gup, Speaker Albert Was Ready to Be
President , WASH. POST (Nov. 28 , 1982 ), https://www.washingtonpost.com/archive/
politics/ 1982 /11/28/speaker-albert -was-ready- to- be-president/84ebaa61-9cf1 - 4817 - 836e-
a993e7e0e980/ [https://perma.cc/V9CR-PE8R]. One suspects that Albert would not have
gone to this trouble if Nixon and he already had an arrangement in place . 89. See Memorandum from Bobbie Greene Kilberg, supra note 60 , at 4; see also FEERICK ,
supra note 4, at 344. 90. See Memorandum from Bobbie Greene Kilberg, supra note 60, at 4 , 6 - 9 ; see also
FEERICK , supra note 4, at 344, 346 - 49 . 91 . Memorandum from Frank Wiggins to Mike Berman, Counsel to Vice President Walter
Library Center , C. Boyden Gray Files , OA/ID No. CF01823 , Folder ID No. 1823 - 005 ). 92. See id. at 1 . 153. See U.S. CONST. art. I, § 7, cl. 2. 154. See id. 155. See Brownell, supra note 12 , at 201 . 156. U.S. CONST. art. II, § 4 . That said, impeachment proceedings against federal judges
54 AM. HIST. REV . 485 ( 1949 ). 157 . See Presidential Inability: Hearing Before the Special Subcomm . on Study of
Presidential Inability of the H . Comm. on the Judiciary, 85th Cong . 30 ( 1957 ) (statement of 181. Id. Jefferson also may have exceeded his authority in committing taxpayer funds to
POWER 74 ( 2014 ). 182 . Letter from Thomas Jefferson to John Breckinridge (Aug. 12 , 1803 ), in 10 THE
WRITINGS OF THOMAS JEFFERSON 407 , 411 (Andrew A . Lipscomb ed., 1903 ). Others at the
CONSTITUTION IN CONGRESS , THE JEFFERSONIANS , 1801 - 1829 , at 99- 107 ( 2001 ). 183 . See , e.g., CURRIE, supra note 182 , at 98 . 184. Letter from Thomas Jefferson to John Breckinridge, supra note 182, at 411. At the
the better .” Letter from Thomas Jefferson to James Madison (Aug. 18 , 1803 ),
8H45]; see also 1 ABRAHAM D. SOFAER, WAR , FOREIGN AFFAIRS , AND CONSTITUTIONAL
POWER 197 n.* ( 1976 ). 185 . Letter from Thomas Jefferson to John Breckinridge, supra note 182, at 411 . 186. See BAILEY , supra note 34, at 186-91; CURRIE, supra note 182, at 95- 114 . 187 . See SOFAER , supra note 184, at 172.