A DISCUSSION OF LAW AND JOURNALISM

Presidential Disability in the Tropic of Cancer

25th Amendment

By José I. Ortiz

I admit it: I’m hooked on ABC’s hot political drama “Scandal”. I tried to resist all of the hype surrounding the show, but with lots of time on my hands over winter break, I gave in and watched every episode that had aired. Now they can’t come fast enough.

I never thought anything constructive would come from my new addiction, until one of this season’s episodes touched on a topic that interested me. On the show, the president of the United States was shot in the head and fell into a coma. The vice president saw an opportunity for her political career and quickly took over as “Acting President.”

This reminded me of something I’d read in a recent issue of The Economist

Venezuelan president Hugo Chávez has been undergoing cancer treatments since 2011. To complicate an already delicate situation for any sitting president, he has been traveling to Cuba for these treatments. A spokesman announced early last month that Mr. Chávez suffered complications prior to his most recent operation in Havana and would not be able to return to Caracas for his January 10 inauguration.

Yes, Mr. Chávez recently won re-election and is now unable to make it to his own inauguration. Opposition politicians and journalists have questioned the government about Mr. Chávez’s true condition, and are told that the president is alive, kicking and soon to return to the job; the inauguration is merely postponed. The Venezuelan government reminds us that its constitution allows the president to postpone his inauguration by up to 180 days – more than enough time for Mr. Chávez to recuperate, so they say.

So I wondered – what if it happened here? Most of us know about the procedure to follow after the tragic death, resignation, or impeachment of a sitting U.S. president. Is there an established procedure for a Chávez/Scandal-like situation in the American legal system? LASIS investigates.

As it turns out, American politicians and pundits throughout the 20th century have been worried about the implications of a living but severely disabled sitting president. Presidents Garfield and Wilson were both disabled for a period of time before dying in office and because of FDR’s frailty towards the end of his life, many feared that his future would be marred by the same fate. Lawmakers were finally pushed into action by President Kennedy’s assassination.

The Twenty-fifth Amendment was ratified by Congress on February 10, 1967. It sought to remedy two problems: a vacancy in the vice presidency and presidential disability.

There had been no constitutional process for nominating a new vice president once a vice president became president; yet seven vice presidents have died in office and one resigned leaving the office vacant until the following elections. This new amendment allows the sitting president to nominate a new vice president pending approval of a majority of both houses of Congress.

The Twenty-fifth seeks to resolve the disabled-president-problem by providing two possible solutions. The president himself can invoke the amendment – granting the vice president his constitutional powers – by sending a letter notifying the president pro tempore of the Senate and the speaker of the House of his intentions. If the president is unable to invoke the amendment, the vice president and a majority of cabinet members can do it for him, as long as they notify the same two parties above.

Since 1967, only two presidents have acted in a way that even comes close to invoking the Twenty-fifth. President Ronald Reagan wrote a letter notifying both parties required by the amendment that he was temporarily passing on his constitutional powers as president to Vice President Bush for a period of about eight hours. The reason? President Reagan was undergoing surgery related to colon cancer. President George W. Bush also made Vice President Richard “Dick” Cheney acting president for a period of about two hours on two different occasions; President Bush had a colonoscopy in 2002 and again in 2007.

Neither President Bush nor President Reagan officially invoked the Twenty-fifth Amendment in these acts. President Reagan’s administration went as far as officially declaring he was “not invoking” the amendment. The reason was most likely political: officially invoking the amendment would be to declare disability and this could be a sign of weakness. In fact, both presidents Bush and Clinton established protocols for the possibility of one day being unable to perform their duties, which were kept secret until after their terms were over.

March 30, 1981 would have been the perfect moment for the Twenty-fifth to shine. But it didn’t. On this day, President Reagan was shot in the chest. His Secretary of State, Alexander Haig made his controversial “As of now, I am in control here…” statement which many thought completely undermined then-Vice President Bush’s constitutional authority as the rightful heir to the oval office. Though the Twenty-fifth wasn’t invoked, President Reagan’s doctor has since spoken about how he felt that it should have been.

In its article about Mr. Chávez, The Economist opined that someone else should take over the country, but didn’t go into a detailed plan on how this should happen. Clearly, Mr. Chavez and his spokespeople are reluctant to admit (to themselves, to the world) that he cannot lead at this time.  To be fair, a region’s socio-economic reforms and stability hang in the balance every time a change in leader is announced.

For the thrill of a change of command without the real world implications, you can just watch “Scandal”.

UPDATE, March 5, 2013:  Venezuelan President Hugo Chávez has died. He will be succeeded by Vice President Nicolas Maduro who is now the acting president of the republic. Elections for a new president are set to take place in 30 days.

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