                   Presidential Succession and Delegation
                            in Case of Disability

[The follow ing m em orandum discusses issues relating to presidential succession and dele­
  gation o f presidential pow er in the event o f a tem porary disability o f the President. It
  examines the mechanism established by the T w enty-F ifth A m endm ent by w hich the
  V ice President assumes the pow ers and duties o f the Office o f the President, and the
  conditions under w hich the President resum es his Office after his disability is ended. It
  also examines the circum stances in w hich the President may delegate his pow ers to
  o ther officials, including the V ice President, w hen it is not considered necessary or
  appropriate to invoke the provisions o f the T w enty-F ifth A m endm ent. It concludes
  that functions vested in the President by the C onstitution are generally not delegable
  and must be perform ed by him; how ever, any pow er vested in the President by statute
  may be delegated to subordinate officers, unless the statute affirm atively prohibits such
  delegation. Finally, the m em orandum briefly review s the form and m ethod o f delega­
  tion. A n appendix contains a historical sum m ary o f p rio r presidential disabilities and the
  resulting effect on presidential authority.]

                                                                                    April 3, 1981
         M EM ORANDUM FO R T H E ATTO RN EY G E N E R A L

   As a result o f the recent assassination attempt on President Reagan,
this Office has researched several issues that relate to presidential suc­
cession and the delegation of presidential power in the event of a
temporary disability of the President. This memorandum sets forth our
conclusions on the relevant legal issues.
                                 I. Presidential Succession
  The Twenty-Fifth Amendment to the U.S. Constitution establishes a
mechanism for presidential succession in the event that the President
becomes unable to perform his constitutional duties. Succession may
take place in tw o ways. First, if the President is able and willing to do
so, he may provide for the temporary assumption of the powers and
duties of his office by the Vice President by “transmit[ting] to the
President pro tempore of the Senate and the Speaker of the House of
Representatives his written declaration that he is unable to discharge
the powers and duties of his office.” U.S. Const., Amend. XXV, §3.
When the President transmits such a declaration, his powers and duties
devolve upon the Vice President as Acting President1 until the Presi-

   ’There appears to be no requirement that the Vice President resign from his position as Vice
President or take the President's oath of office to serve as “ Acting President.” As a general rule, an
                                             Continued


                                                 91
dent transmits an additional written declaration stating that he has
become able to perform his responsibilities.
   Second, if the President is unable or unwilling to transmit a declara­
tion o f his inability to perform his duties, the Vice President will
become Acting President 2 if the Vice President and a majority of the
“principal officers of the executive departments” transmit to the Presi­
dent pro tem pore of the Senate and the Speaker of the House a written
declaration that the President is unable to discharge the powers and
duties o f this Office. See U.S. Const., Amend. XXV, §4. The term
“principal officers of the executive departments” is intended to mean
“the Cabinet,” although the term “Cabinet” has no precise legal defini­
tion.3
   If, during the period in which the Vice President is Acting President,
pursuant to the provisions of Section 4 of the Twenty-Fifth Amend­
ment, the President submits to the President pro tempore of the Senate
and the Speaker of the House a written declaration that no inability
exists, he will resume the powers of his office unless, within four days, the
Vice President and a majority of the Cabinet heads transmit an addi­
tional written declaration stating that the President is unable to dis­
charge his powers and duties. A t that point, Congress must decide the


official w ho is “acting” in a certain capacity need not vacate the office previously held or take the
oath o f office ordinarily taken by th e person whose duties he has temporarily assumed This conclu­
sion is supported by Presidential Inability and Vacancies in the Office o f Vice President: Hearings Before
the Subcomm. on Constitutional Amendments o f the Senate Comm, on the Judiciary, 88th Cong., 2d Sess
215, 232 (1965); Presidential Inability: Hearings Before the House Comm, on the Judiciary, 89th Cong.,
1st Sess 87 (1965). See also J. Feerick, The Twenty-Fifth Amendment, 199 (1976) (Feerick) T he rule
as to resignation a n d /o r taking the President’s oath appears to be different for those officials further
dow n the line o f succession See 3 U.S.C. § 19. This memorandum does not address the issues involved
in the devolution of powers beyond the position of Vice President.
   2 T he Vice President will evidently continue to exercise the duties of Vice President while he
serves as Acting President. The V ice President would, however, lose his title as President of the
Senate. See 111 Cong. Rec. 3270 (1965) (Sen. Saltonstall); Feerick at 199
   3 See S. Rep. No. 66, 89th Cong., 1st Sess. 2 (1966) We believe that the “ principal officers of the
executive departm ents,” for purposes of the Twenty-Fifth Amendment, include the Secretary of State,
Secretary o f Treasury, Secretary o f Defense, A ttorney General, Secretary of the Interior, Secretary of
Agriculture, Secretary o f Commerce, Secretary of Labor, Secretary of Health and Human Services,
Secretary o f Housing and Urban Development, Secretary of Transportation, Secretary o f Energy, and
Secretary o f Education. That conclusion is supported by the legislative history See 111 Cong. Rec.
7938 (1965) (Rep. Waggoner); id. at 7941 (Rep Poff); id. at 7944-45 (Rep. Whitener); id. at 7953, 7954
(Rep. Gilbert). See also Feerick at 202-03; 5 U S.C. § 101. As a practical matter, and in order to avoid
any doubt regarding the sufficiency o f any given declaration, it would be desirable to obtain the assent
o f a sufficient number of officials to satisfy any definition o f the term “ principal officers of the
executive departm ents.”
   T here is some indication that acting heads o f departments may participate in the presidential
disability determination. Although th e legislative history is conflicting, the House Judiciary Commit­
tee's report supports this conclusion, see H R. Rep No. 203, 89th Cong., 1st Sess. 3 (1965), as do the
Senate debates, see 111 Cong. Rec. 15,380 (1965) (Sen. Kennedy); id. at 15,583 (1965) (Sen. Javits); and
a leading com m entator on the Amendment reaches the same conclusion. See Feenck at 203. Contra,
 111 Cong Rec. 3284 (1965) (Rep. Hart). The contrary view proceeds on the assumption that such a
decision should be made only by persons whom the President personally selected for his Cabinet. Such
persons are presumably intimately familiar with the President and are of relatively equal status with
the other decisionmakers.

                                                    92
issue within specified time limits. See U.S. Const., Amend. XXV, §4,
para. 2.4

                                  II. Presidential Delegation

   Under circumstances in which it is not considered necessary or
appropriate to invoke the provisions of the Twenty-Fifth Amendment,
it may nonetheless be desirable for the President to delegate certain
powers to other officials, including the Vice President. Under statute, 3
U.S.C. § 301, and under the Constitution, see Myers v. United States, 272
U.S. 52, 117 (1926), the President has broad authority to delegate
functions vested in him by law. At the same time, the Constitution and
certain statutory provisions impose limits on the President’s power to
confer his authority on subordinate officials. The nature and extent of
those limits are considered in this section.

A. Constitutional Limitations on the President’s Power to Delegate His
Functions

  As early as 1855, Attorney General Cushing articulated the general
rule that the functions vested in the President by the Constitution are
not delegable and must be performed by him. 7 Op. A tt’y Gen. 453,
464-65 (1855). The Attorney General opined:
            Thus it may be presumed that he, the man discharging
         the presidential office, and he alone, grants reprieves and
         pardons for offenses against the United States, not another
         man, the Attorney General or anybody else, by delegation
         of the President.
            So he, and he alone, is the supreme commander-in-chief
         of the Army and Navy of the United States, and of the
         militia o f the several States, when called into the actual
         service o f the United States. That is a power constitution­
         ally inherent in the person of the President. No act of

   4 Under the Amendment, we believe that there is no requirement that the requisite written declara­
tions of disability be personally signed by the Vice President and a majority of the heads of executive
departments. The only requirements are that their assent to the declaration be established in a reliable
fashion and that they direct that their names be added to the document. Moreover, the Vice President
and the Cabinet heads may send separate declarations if necessary. See Presidential Inability: Hearings
Before the House Comm, on the Judiciary, 89th Cong., 1st Sess 79-80 (1965). Finally, we believe that
under both §§ 3 and 4 o f the Amendment, the transfer o f authonty to the Vice President takes effect
“immediately" when the declaration is transmitted or sent, and is not delayed until receipt of the
document by the President pro tempore of the Senate and the Speaker of the House. Although the
question is not free from doubt, the language and the history of the Amendment tend to support this
conclusion. See S. Rep. No 66, 89th Cong., 1st Sess. 12-13 (1965); H.R. Rep. No 203, 89th Cong., 1st
Sess. 13 (1965). But see H.R. Rep. No. 564, 89th Cong., 1st Sess. 3 (statement of Managers on the Part
of the House to the effect that “after receipt of the President’s written declaration of his inability.. . .
such powers and duties would then be discharged by the Vice President as Acting President”) The
better construction would allow the devolution of powers “immediately” (the w ord used in § 4 o f the
Twenty-Fifth Amendment) upon transmittal No meaningful purpose would be served by awaiting the
arrival of the document. The alternative construction allows a more rapid transition of presidential
power when the national interests require it.

                                                  93
      Congress, no act even o f the President himself, can, by
      constitutional possibility, authorize or create any military
      officer not subordinate to the President.
         So he appoints and removes ambassadors and other
      officers o f the United States, in the cases and with the
      qualifications indicated by the Constitution.
         So he approves or disapproves of bills which have
      passed both Houses of Congress: that is a personal act of
      the President, like the vote o f a Senator or a Representa­
      tive in Congress, not capable of performance by a Head
      of Department or any other person.
  A study prepared by this Office in the 1950s reaches the same
conclusions. This study and our research suggest that the following are
nondelegable functions o f the President:
           1. The power to nominate and appoint the officers of the
              United States to the extent provided in Article II, § 2,
              clause 2 o f the Constitution.
           2. The power to approve or return legislation pursuant to
              Article I, § 7, clauses 2 and 3, and the power to call
              Congress into special session or to adjourn it according
              to Article II, § 3.
           3. The power to make treaties by and with the advice and
              consent o f the Senate. U.S. Const., Art. II, § 2, cl. 2. It
              should be noted, however, that the power to negotiate
              treaties and the power to enter into executive agree­
              ments may be delegated. See 7 Op. A tt’y Gen., supra, at
              465.
           4. The power to grant pardons. U.S. Const. Art. II,
              §2, cl. 1.
           5. The power to remove purely executive presidential ap­
              pointees. This power is vested in the President as an
              incident o f his appointment power. Myers v. United
              States, 272 U.S. at 119.
           6. T he power to issue executive orders. Only the President
              can issue formal executive orders and proclamations. He
              can, however, delegate the power to issue many orders
              which cover substantially the same subject matter as
              executive orders and proclamations as long as they are
              not so named.
           7. T he powers of the President as Commander-in-Chief of
              the Army and Navy. U.S. Const., Art. II, § 2, cl. 1. In
              view of Article I, § 8, clauses 12 and 13, which state
              that Congress shall have the power to raise and support

                                   94
                the Army and to provide and maintain a Navy, many of
                the President’s powers as Commander-in-Chief are
                statutory in part. To conclude that the President may
                not delegate his ultimate constitutional responsibilities as
                Commander-in-Chief is not to suggest that he is the
                only officer of the government who may make military
                decisions in time of emergency, when immediate re­
                sponse may be necessary. The President may make
                formal or informal arrangements with his civilian and
                military subordinates, in order to ensure that the chain
                of command will function swiftly and effectively in time
                of crisis. O f course, every military officer must be sub­
                ordinate to the President.

B. Statutory Limitations on the President’s Power to Delegate His
Functions

  The foregoing discussion sets forth the general rule that the President
may not delegate inherent powers that are conferred on him by the
Constitution. On the other hand, he may generally delegate powers that
have been conferred on him by Congress. Congress has so provided in
3 U.S.C. § 301, which states:
          The President of the United States is authorized to
       designate and empower the head of any department or
       agency in the executive branch, or any official thereof
       who is required to be appointed by and with the advice
       and consent of the Senate, to perform without approval,
       ratification, or other action by the President (1) any func­
       tion which is vested in the President by law, or (2) any
       function which such officer is required or authorized by
       law to perform only with or subject to the approval,
       ratification, or other action of the President: Provided,
       That nothing contained herein shall relieve the President
       o f his responsibility in office for the acts of any such head
       or other official designated by him to perform such func­
       tions. Such designation and authorization shall be in w rit­
       ing, shall be published in the Federal Register, shall be
       subject to such terms, conditions, and limitations as the
       President may deem advisable, and shall be revocable at
       any time by the President in whole or in part.
  Congress has further provided, in 3 U.S.C. § 302, that:
         The authority conferred by this chapter shall apply to
       any function vested in the President by law if such law
                                     95
       does not affirmatively prohibit delegation of the perform­
       ance of such function as herein provided for, or specifi­
       cally designate the officer or officers to whom it may be
       delegated. This chapter shall not be deemed to limit or
       derogate from any existing or inherent right of the Presi­
       dent to delegate the performance of functions vested in
       him by law, and nothing herein shall be deemed to re­
       quire express authorization in any case in which such an
       official would be presumed in law to have acted by au­
       thority or direction of the President.
   As a result o f these statutes, the President is authorized to delegate
any pow er vested in him by statute unless the statute “affirmatively
prohibits] delegation.” In our view, a statute should be construed as an
“affirmative” prohibition o f delegation only if it prohibits delegation
expressly or by unmistakable implication. T he purpose of §§ 301 and
302 is to facilitate the functioning o f the Executive by specifically
authorizing delegation in the great majority o f cases. To this end, § 301
states a general rule in favor of delegation. In light of the breadth of
this general rule, the exception in § 302 should be narrowly construed.
The same inference can be drawn from the fact that Congress took care
in § 302 not to derogate from any “existing or inherent right of the
President to delegate the performance of functions vested in him by
law .”
   Statutes which do expressly or by unmistakable implication prohibit
delegation are subject to the possible constitutional objection that the
pow er to delegate is inherent in the Executive and may not be re­
stricted by Congress. T he issue is a difficult one and has never been
resolved in court. In our view, the wiser course is to comply with any
clear congressional intention to prohibit delegation, in order to avoid
testing the limits of this constitutional question, unless circumstances
imperatively require delegation.
   In the brief time we have had to review the matter, we have discov­
ered only a very few statutes that expressly or by unmistakable implica­
tion prohibit delegation. W hat follows is a description of categories of
statutes that fall o r may fall within this general class.
1. Statutes Explicitly Prohibiting Delegation

  T he clearest cases are those in which the statute explicitly prohibits
delegation. An example is found in the Export Administration A ct of
1979, 50 U.S.C. § 2403(e) (Supp. Ill 1979), which provides that:
       T he President may delegate the power, authority, and
       discretion conferred upon him by this A ct to such depart­
       ments, agencies, or officials of the Government as he may
       consider appropriate, except that no authority under this
                                    96
       A ct may be delegated to, or exercised by, any official of
       any department or agency the head of which is not ap­
       pointed by the President, by and with the advice and
       consent of the Senate. The President may not delegate or
       transfer his power, authority, and discretion to overrule
       or modify any recommendation or decision made by the
       Secretary [of Commerce], the Secretary of Defense, or
       the Secretary of State pursuant to the provisions of this
       Act.

2. Statutes Conferring Nondelegable Functions

  An unmistakable congressional intent to prohibit delegation may also
be inferred from statutes that impose on the President a duty o r power
to exercise a nondelegable function. For example, it is commonly
thought that only the President may issue an executive order o r procla­
mation. Statutes that authorize the President to take an action, but
require him to act by way of executive order or proclamation, can
therefore be read as precluding delegation. An example is found in 22
U.S.C. § 441(a):
      Whenever the President . . . shall find that there exists a
      state of war between foreign states, and that it is neces­
      sary to promote the security or preserve the peace of the
      United States or to protect the lives of citizens of the
      United States, the President shall issue a proclamation
      naming the states involved; and he shall, from time to
      time by proclamation, name other states as and when they
      become involved in the war.

3. Statutes Implicitly Prohibiting Delegation

   A broad range of statutes confer powers on the President but do not
state in terms or in the legislative history whether those powers are
delegable. In some instances, the character or importance of the powers
in question, or other special circumstances, may constitute a sufficient
indication of a legislative intent to prohibit delegation.
   In the brief time available, we have been unable to reach any firm
conclusions regarding particular statutes in this category. In general, it
would appear that statutory powers that have been exercised by the
President himself on a consistent and longstanding basis are more likely
than others to be held nondelegable. An example might be the Presi­
dent’s statutory power to enter into or terminate trade agreements with
certain nations under 19 U.S.C. § 1351.
                                   97
   A second special circumstance that can give rise to an inference of
nondelegability occurs when Congress gives authority to an agency but
subjects that authority to a requirement of presidential approval. In this
circumstance, it can be argued that a delegation o f the President’s
approval authority back to the agency would subvert the evident legis­
lative intent to assure review by someone outside the agency, while a
delegation to anyone else would conflict with the congressional intent
to centralize primary administrative responsibility in the agency. For an
example o f such a statute, see § 12(k) o f the Securities Exchange Act of
1934, 15 U.S.C. § 781(k).5

                                   III. Delegable Fumctioms

   All remaining functions o f the President may be delegated to subordi­
nate officers. M any statutes explicitly authorize delegation. See, e.g., 22
U.S.C. § 2381 (delegation o f certain foreign affairs powers). In the
absence o f specific authorization, the general delegation statute, 3
U.S.C. §§301, 302, explicitly authorizes delegation except where pre­
cluded by statute. It is beyond the scope o f this memorandum to
describe the full extent o f the presidential powers and responsibilities
that may be delegated.6 In general, powers which may be delegated
include those o f approval, authorization, and assignment; powers to
establish and convene certain administrative commissions, to designate
responsible officers, and to make certain factual determinations; powers
to direct that certain actions be taken, to fix compensation of officers,
to prescribe certain rules and regulations, and to make recommenda­
tions or reports.
   It bears repetition that the President may not delegate his power to
delegate his own functions. This is, in our view, a function that is
constitutionally vested in the President personally. The President may
delegate his powers if he is capable o f a conscious decision to do so. If,
how ever, he is incapable o f such a decision, delegation cannot occur. If
such a situation continues for a substantial period o f time, it would
appear desirable to initiate procedures for presidential succession under
the Tw enty-Fifth Amendment.7



   5 W e emphasize that the above examples are entirely tentative; it may well be that, upon further
examination o f the statutes and their legislative histories, this Office would conclude that Congress did
not intend to prohibit delegation.
   6 F o r a description o f the President’s general authonty, see President's Advisory Council on
Executive Organization, The Powers and Responsibilities of the President (1970).
   7It might be possible for the President to delegate his powers contingent upon the occurrence o f a
specified event such as a certification by the President’s personal physician that the President is
tem porarily incapable o f making a conscious decision. We would emphasize, however, that this
procedure should not be used if its effect is contrary to the intent of the procedures for presidential
succession contained in the Twenty-Fifth Amendment.

                                                   98
                  IV. Form and Method of Delegation

   W henever a presidential function or power is delegable, it may be
delegated to the head of any department or agency in the Executive
Branch, or any official thereof, if the official is appointed with the
advice and consent of the Senate. 3 U.S.C. §301. By statute, such a
delegation is ordinarily accomplished through the preparation and pub­
lication o f a written order or memorandum. The relevant document is
normally signed by the President personally; but there is no express
statutory requirement to that effect. In our opinion, the relevant statu­
tory requirements are satisfied as long as the President actually makes
the delegation in question and causes an appropriate written memorial
to be prepared and published. He need not sign the document by his
own hand. See United States v. Fletcher, 148 U.S. 84-92 (1893); 7 Op.
A tt’y Gen. at 472-73 (1855); 22 Op. A tt’y Gen. 82, 84 (1898). More­
over, the statute does not purport to restrict the President’s constitu­
tional power to delegate his powers and functions. 3 U.S.C. § 302. We
believe that a President may determine in an exigent circumstance that
it is necessary to delegate a power or function without immediate
compliance with the normal formal requisites (i.e., publication of a
written document). Such a delegation is effective if it is necessary to
enable the President to discharge his constitutional duty.
                                          T   heodore   B.   O   lso n

                                        Assistant Attorney General
                                         Office o f Legal Counsel
Attachment




                                   99
                                           APPENDIX

                            P r io r P   r e s id e n t ia l   D   is a b il it ie s


   This is a summary of prior presidential disabilities and the resulting
effect on presidential authority.1
   1. James Madison suffered from a severe fever in the summer of 1813
in the midst o f disputes w ith Congress on how to pay for the W ar of
1812. I. Brant, James Madison: Commander-in-Chief, 1812-1836, at
184-94 (1961). Daniel W ebster reported at one point that Madison was
too weak to read resolutions brought to his bedside. Id. at 186-87. Both
Houses of Congress became “engrossed” for over a month in specula­
tion on the succession,2 since the Vice President was aged and there
was a vacancy in the position of President pro tempore of the Senate. J.
Feerick, T he Twenty-Fifth Amendment 4-5 (1976) (Feerick). Madison
recovered, however, and no legislation was passed nor were formal
arrangements for the delegation or transfer of power implemented.
   2. William Henry Harrison was inaugurated on M arch 4, 1841, and
died o f pneumonia on A pril 4, 1841. His illness was so short that the
question of inability apparently did not arise.3
   3. James A. Garfield was wounded on July 2, 1881, by an assassin
and died 80 days later on September 19, 1881. Vice President Chester
A. A rthur did not act in his stead. A rthur refused to do so because of a
fear, shared by many constitutional scholars of the time, that once he
had assumed the powers and duties o f the office, they would “devolve
on the Vice President” permanently, leaving him unable to turn the
reins back to the President. U.S. Const., Art. II, § 1, cl. 6. See S. Rep.

   M a te ria l consulted included the N.Y. Times, S. Rep. No. 66, 89th Cong., 1st Sess. (1965), and
hearings held in 1958. Presidential Inability: Hearings on S.J. Res. 100, S.J. Res. 133, S.J. Res. 134, S.J.
Res. 141, S.J. Res. 143, S.J Res. 144, S. 238, and S. 3113 Before the Subcomm. on Constitutional
Amendm ents o f the Senate Comm, on the Judiciary, 85th Cong., 2d Sess. (1958) [hereinafter cited as 1958
Hearings]. A list o f articles on presidential inability can be found in the 1958 Hearings, at 41-42.
   2 T he first succession act was passed in 1792. A ct of M arch 1, 1792, §§9-11, 1 Stat. 239.
Unsuccessful efforts to change this statute occurred in 1820, 1856, and 1881.
   3 W hen Harrison died, Secretary of State Daniel Webster questioned whether the Constitution
meant that Vice President John T yler became “A cting President,” rather than the President. Tyler
disagreed and took the oath as President, thus establishing the MTyler precedent” that the Vice
President does succeed to the Office o f the President when the prior occupant dies. 1958 Hearings at
149.
   T he deaths o f Z achary Taylor (July 9, 1850) and Abraham Lincoln (April 15, 1865) were appar­
ently so swift that their Vice Presidents (Millard Fillmore, Andrew Johnson) assumed control without
trouble. Feerick at 7-8.

                                                    100
No. 66, 89th Cong. 1st Sess. 6 (1965) (1965 Senate Report). Although
the entire Cabinet believed Garfield to be unable to carry out his
duties,4 four of them, including the Attorney General, agreed with
A rthur’s analysis. Secretary of State James G. Blaine was in fact criti­
cized for attempting to usurp presidential powers during Garfield’s
lengthy illness. 1958 Hearings at 149-50.5
   4. G rover Cleveland had two major operations for cancer of the
mouth in July 1893. He told almost no one, including Vice President
Adlai Stevenson. The two operations took place on a friend’s yacht,
with Cleveland unconscious and strapped to a chair propped against the
mast. Feerick at 11-12. The complete secrecy was due to fears that the
country might suffer an economic panic if it knew the President had
cancer. The truth was apparently suppressed until 1917. Feerick at 12.6
   5. William McKinley was wounded on Friday, September 6, 1901.
He underwent emergency surgery and his doctors issued optimistic
statements about his recovery. So positive was the outlook that Vice
President Theodore Roosevelt and the Cabinet members who had gath­
ered in Buffalo over the weekend began to disperse. M. Leech, In the
Days of McKinley 598-99 (1959). “[T]he Vice-President was so firmly
convinced that the emergency was over that he went to join his family
at a camp in the Adirondacks, twelve miles from telegraph or tele­
phone.” Id. at 599. When McKinley began to fail, a guide was sent up
into the mountains to fetch Roosevelt. Although he rushed back,
Roosevelt arrived to take the oath of Office 12 hours after M cKinley’s
death on September 14.
   6. W oodrow Wilson was incapacitated from a stroke for about eight
months of his second term. A t no time did Vice President Thomas R.
Marshall attempt to take over. See 1958 Hearings at 19. The hesitation
was due to a fear that such action would be viewed as an effort to oust
Wilson permanently. When he recovered, Wilson forced Secretary of
State Lansing, who had called Cabinet meetings and suggested that
Marshall take over as Acting President, to resign, charging him with
disloyalty. Id.
   1.   Franklin Roosevelt was in declining health during his last year in
office, and died on April 12, 1945. Vice President Harry S. Truman had
had only tw o conversations with Roosevelt since the inauguration,
neither dealing with disability. Feerick at 17. Perhaps as a reaction to
this, Truman supported a new succession statute, A ct of June 25, 1948,
Pub. L. No. 80-771, 62 Stat. 672, 677-78 (1948).

   4 Garfield was able to conduct only one minor piece of business—the signing of an extradition
paper Feerick at 9
   8 Arthur, who succeeded Garfield, suffered from an increasingly debilitating kidney disease while in
office. Although he gradually reduced his schedule, he does not appear to have become completely
incapacitated. Feerick at 10-11.
   6 It was the death of Cleveland’s first Vice President, Thomas A. Hendricks, in 1885, while
Congress was out o f session, which accelerated passage of the Presidential Succession Act, Pub. L.
No. 49-1, 24 Stat. 1 (1886)

                                                101
   8. D w ight D. Eisenhower suffered three major illnesses while in
office—a heart attack (1955), ileitis (1956), and a “mild” stroke (1957).
From the first, Vice President Richard Nixon consulted with the Cabi­
net and developed a procedure for relaying important matters to the
President. A W hite House request for an opinion on the temporary
delegation o f presidential power was not acted upon because Attorney
General Brownell felt there were sufficient legal arrangements in place
to handle day-to-day operations.
  Eisenhow er was very troubled by the implications of the disability
problem during each of his illnesses. He asked the Department of
Justice to study the problem and recommend a solution, urged Con­
gress to act, and entered into an informal agreement with Mr. Nixon.
Feerick at 20-22. The agreement provided that:
            1. In the event of inability the President would—if
         possible—so inform the Vice President, and the Vice
         President would serve as Acting President, exercising the
         powers and duties of the office until the inability had
         ended.
           2. In the event o f an inability which would prevent the
         President from so communicating with the Vice Presi­
         dent, the Vice President, after such consultation as seems
         to him appropriate under the circumstances, would decide
         upon the devolution of the powers and duties of the office
         and would serve as Acting President until the inability
         had ended.
            3. The President, in either event, would determine
         when the inability had ended and at that time would
         resume the full exercise o f the powers and duties of the
         Office.
1965 Senate Report at 7 .7 Although Congress did hold hearings, no
perm anent action was taken.8
  9. Lyndon B. Johnson was hospitalized four times, the first time
being for a major bout w ith the flu (January 23-27, 1965).9 In October
1965, Johnson was hospitalized for gall bladder surgery.10 He was

   7See also N.Y. Times* March 4, 1958, at 1, col. 2. Presidents Kennedy and Johnson entered into
similar agreements with their Vice Presidents. 1965 Senate Report at 7. N.Y. Times, Jan. 28, 1965, at
13, col. 1. T he Johnson-Humphrey agreement was identical to the Eisenhower-Nixon agreement. The
Kennedy agreem ent differed only in that it urged the Vice President to consult with the Cabinet and
the A ttorney General i4as a matter o f wisdom and sound judgm ent.” 1965 Senate Report at 7.
   8See 1958 Hearings, supra, and Hearings before the Special Subcommittee to Study Presidential
Disability o f the House Committee on the Judiciary, 84th Cong., 2d Sess. (1956).
   9 A t the time, Vice President H ubert H Humphrey stated that there had been discussions of when
he w ould take over and a copy of the Johnson-Humphrey accord was made available to the press on
January 28. See note 7, supra, and text.
   10T he accord was again noted by the press and columnist A rthur Krock urged the states to ratify
the T w enty-Fifth Amendment.

                                                102
anesthetized for three to four hours, after which Press Secretary
Moyers announced that Johnson was again able to make presidential
decisions.11
   The same pattern was repeated in November 1967, when Johnson
underwent simultaneous surgery for a polyp on his vocal cord and
repair of a ventral hernia. He was anesthetized for about an hour and a
half. Note was made of the agreement that could make Humphrey
“Acting President” and columnist Tom Wicker urged that the Twenty-
Fifth Amendment be ratified.
   In December 1968, Johnson was again hospitalized for the flu. The
papers, however, said little other than that he worked on government
papers on one day of his stay.
    10. Richard M. Nixon was hospitalized from July 12-20, 1973, for
viral pneumonia. The President’s press office said that he would be able
to do necessary work and that he was not sick enough to require the
Vice President to make special arrangements. In an interview, Vice
President Spiro T. Agnew said that there was no agreement between
the President and him on what to do in the event of Nixon’s disability
and that the issue had never been discussed.
   Although there were persistent rumors about Nixon’s health during
the months prior to his resignation, the only White House announce­
ment was an acknowledgment that the President suffered from phlebi­
tis. The operation on his leg did not occur until September 23, 1974,
after his resignation.
    11. Jimmy Carter’s scheduled surgery for hemorrhoids in late De­
cember 1978, was cancelled. Preparations for the Vice President to
assume power under § 3 of the Twenty-Fifth Amendment were also
cancelled.

                                                            L   arry    L . S im m s
                                                  Acting Assistant Attorney General
                                                       Office o f Legal Counsel




   11 Citing recent history, Johnson had urged Congress to act on the disability problem in his State of
the Union address in January, 1965. The proposed Twenty-Fifth Amendment was sent to the states in
July 1965.

                                                103
