Report: Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System
By Second Fordham University School of Law Clinic on Presidential Succession
This Report begins with an overview of the presidential succession system, particularly the Twenty-Fifth Amendment provisions. The remaining Parts describe the Clinic’s recommendations.
The first Part of the Clinic recommendations discusses executive branch contingency planning and outlines two steps the White House can take to prepare for presidential inabilities. First, the Clinic recommends that the President determine in advance situations where the Vice President should act as President under the Twenty-Fifth Amendment’s voluntary transfer provision at Section 3. Such a “prospective declaration of inability” would allow for transfers of power during emergencies when the Cabinet is not easily reachable to invoke Section 4, the Amendment’s other inability provision. Second, given that some Presidents have suffered psychological ailments, the Clinic recommends that the White House add a mental health professional to the unit of doctors and nurses who care for the President.
The next Part describes the Clinic’s recommendations for improving the line of succession. These recommendations address concerns about the successors’ qualifications and other vulnerabilities. The Clinic’s recommendations include removing legislators and lower-ranking Cabinet members as well as adding some officials chosen by the President and confirmed by Congress.
Next, the Report addresses the absence of procedures for vice presidential inabilities and “dual inabilities” of the President and Vice President. These gaps could prevent orderly transfers of power. The Twenty-Fifth Amendment’s inability provisions are unusable when the Vice President is incapacitated. In a “dual inability” situation, there is no formal way for the next person in the line of succession to take power. The Clinic recommends statutes that mirror the Twenty-Fifth Amendment’s inability provisions to address these gaps.
The following Part considers how Congress would carry out its responsibility to resolve a dispute over whether the President is unable. Section 4 of the Twenty-Fifth Amendment gives Congress twenty-one days to “decide” whether the President is unable if the President contests an inability determination by the Vice President acting with the Cabinet or another body. The Clinic recommends the creation of a joint committee of both Houses of Congress. This Part also anticipates legal disputes that may arise in such a scenario.
The final two Parts focus on succession and inability issues during presidential campaigns. Some candidates have been less than forthcoming with the public about their health histories. To encourage more transparency, the Clinic recommends that a commission develop guidelines for what candidates should disclose about their health. Last, the Report considers the political parties’ procedures for replacing presidential candidates. The parties’ current replacement rules lack detail and have unclear provisions for situations where candidates become unable. The Clinic recommends making the vice presidential nominee the designated successor to the nomination in the final weeks of the campaign and creating a provision for candidate inabilities.