Succession and Business

January 6, 1964

The shocking assassination of President Kennedy was followed by hours of panic on the markets of the world. The reminder once again that sudden death—whether through violence, accident, or natural causes—can come to a President in office, and the recognition that our statutory provisions for succession when there is no Vice President are unsatisfactory to many, and that the provisions for the event of “disability” are vague and inadequate, led to considerable discussion of possible remedies.

Because these have a vital bearing also on the question of maintaining business confidence, or at least minimizing business uncertainty, in the event of the recurrence of such a tragedy, I felt justified in discussing the problem in two successive columns (Dec. 2 and 9). I expected to drop the matter there. But to my astonishment more letters have poured into this office on these two columns than on any I have written in years. And at least half of these letters have been based on a misunderstanding of what I proposed. I can only assume that I failed to make myself clear, and that the misunderstanding of my correspondents is shared by others who did not write. So I should like to take up two of these proposals again.

DISABILITY

The first concerns the problem of Presidential disability. The Constitution provides: “In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President, and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly until the disability be removed or a President shall be elected.”

The defect of this provision is that it neglects to define “inability” or “disability”; or to specify who is to certify it if the President himself is unable or unwilling to do so; or to declare who has the authority to say whether or when the disability has been removed. It would be highly embarrassing, at best, to put such decisions on the Vice President or the person next in statutory line of succession. I suggested that the most satisfactory solution of this problem would probably be to empower Congress itself to make these decisions, if a President were unable or unwilling to do so, and to appoint, in the absence of a Vice President, an Acting President to discharge the powers and duties of the office until Congress declared the President’s disability to be removed. Such an amendment, it seems to me, would reflect the intention of the existing constitutional provision, but make explicit what is now obscure.

NO INTERREGNUM

As such a change would itself require a constitutional amendment, I went on to suggest that Congress should in the same amendment provide for the contingency of a successor to the President when there is, as now, no Vice President in office. I proposed that such an amendment should provide that Congress itself, sitting as a single body, choose the new President to fill the unexpired term. It was this proposal that was so widely misunderstood. Many correspondents assumed that while Congress was voting the nation would be left without a head. They overlooked the next sentence, in which I suggested that “the amendment could direct the Speaker of the House . . . to act as President pro tem, etc.” Until Congress’s decision on a new President was reached, in brief (even though that would probably not take more than a few days), the Speaker would exercise full Presidential powers. There would be no interregnum.

On one point, however, my wording was clearly to blame. In an unwise effort at compression I referred to the bitter struggle between President Andrew Johnson and Congress as “culminating in the attempt to impeach him (which failed only by a single vote).” Many correspondents have written to point out, quite correctly, that Andrew Johnson was impeached by the House, and that it was his conviction by the Senate which failed only by a single vote.