To Reduce Uncertainty

December 9, 1963

In a single hour the shocking assassination of President Kennedy altered the whole political and economic outlook for the United States. Only the immediate knowledge that Vice President Johnson would take office on the same day reduced the uncertainty and confusion that would otherwise have prevailed. The incident should serve to remind us once again, however, of how inadequate both our constitutional and statutory provisions are to meet the contingency of the death or disability of a President in office.

Suppose President Kennedy had survived his wound but been seriously incapacitated? This is precisely what happened when President Garfield was shot on July 2, 1881, and lived on for 80 days. President Wilson collapsed on Sept. 25, 1919, and was not able to attend a Cabinet meeting until the following April. President Eisenhower suffered his heart attack on Sept. 24, 1955, and was incapacitated for two months. Yet neither during nor after any of these occasions did Congress attempt to clarify or amend the constitutional provisions regarding “disability.”

WHAT IS ‘INABILITY’?

The constitutional provision reads: Art. II, Sec. 1: “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.”

But what is “inability” or “disability”? Who is to certify it if the President himself is unable or unwilling to do so? Who has the authority to say whether or when the disability has been removed?

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 elect, if necessary, an Acting President to discharge the powers and duties of the office until Congress declared the President’s disability to be removed.

As such a change would itself require a constitutional amendment, 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. In place of the present somewhat makeshift Succession Act, adopted in 1947, it should provide that Congress itself, sitting as a single body, choose the new President to fill the unexpired term. The amendment could direct the Speaker of the House, in the event that Congress was not in session, to act as President pro tem and call a special joint session for the purpose.

A NEEDLESS OFFICE

Finally, in such an amendment, Congress could abolish the needless office of Vice President, and provide, in the event of the President’s death, for the above procedure to choose his successor for the unexpired term.

Such an amendment would solve many problems at once. The new President so chosen would be certain to be a man of outstanding ability. He would have the confidence of the majority of Congress and would therefore be more likely to secure its cooperation than any other man.

If at the time of President Kennedy’s election there had been no Vice Presidential candidate, and Mr. Johnson had still been Senator Johnson and the Senate’s Majority Leader, it is altogether probable that he would still have been today the choice of Congress as President Kennedy’s successor. But Mr. Johnson’s position is in this respect unique. In no other case of a President’s death or assassination in office does it seem probable that his successor would have been the one chosen by Congress as the new President had he not been Vice President.

President Johnson, therefore, is in a unique position to ask for such a reform. We may not always be able to prevent some madman from killing a President in office, but we can and must prevent him from, in effect, selecting a new President for us.