(This article originally appeared in the American Spectator: https://spectator.org/the-summer-2024-presidential-succession-crisis/)

By: John C. Wohlstetter, Senior Fellow

NRO Senior editor Charles C.W. Cooke informs us that according to polls taken in 1996, 2008, and 2024 there has been a striking increase in voters concerned about elderly presidential candidates. In 1996, 27 percent thought that Bob Dole at 73 was too old to run. In 2008, 20 percent thought John McCain at 71 was too old to run. Now, within five months of the November 5 election, 86 percent think President Biden is too old to run for re-election. Worse, 62 percent think that if re-elected, President Biden will die before his second term ends. Cooke calls this a “decoy presidential candidacy.”

During G7 summit, citing diplomatic sources (who obviously would not go public and thereby create an international diplomatic incident), international press outlets reported that Biden looked distracted and lacked focus during meetings. (READ MORE from John Wohlstetter: Can America Survive Israel’s Nuclear Destruction?)

The importance of settling remaining issues pertaining to presidential success can hardly be overstated. Of 45 prior presidents, nine failed to complete their term: four were assassinated; four died of natural causes; and one resigned. Of 54 prior vice-presidents, 18 did not complete their term: 17 died of natural causes, and one resigned. In the 179 years prior to the 1967 ratification of the 25th Amendment, the republic was without a vice-president for 37-3/4 years — 21 percent of the time.

In my new book, Presidential Succession: Constitution, Congress and National Security, I trace the history of presidential succession from the founding of the republic to the present. At the 1787 Grand Convention in Philadelphia, delegate John Dickinson framed the issue: “What is the extent of the term ‘disability’ and who is to be the judge of it?” Nothing was done in 1787, despite some discussion, because the Framers were focused on deciding what powers the new federal government was to have, and how they should be distributed. The First Congress failed to address the issue.

The first presidential succession law was passed in 1792, placing the Senate president pro tem first in line, followed by the Speaker of the House. If they both defaulted, a special election would be held. After the hotly disputed election of 1800, when 36 ballots were needed to select a president, the 12th Amendment was adopted in 1804. It provided for direct vice-presidential succession “in the case of the death or other constitutional disability of the president.”

Thus, when in 1841 President William Henry Harrison died one month into his term, Vice-President John Tyler took the helm. Such was the unsettled nature of things that there was a debate over what title the new occupant of the Oval Office would use: remain vice-president, or become acting president, new president or simply president. Fortunately for posterity, the simpler, most logical title was chosen, and Tyler was sworn in as president. When after Lincoln’s assassination, Andrew Johnson ascended, he, too, took the oath as president, making it standard practice.

This confusion prevailed for 150 years, from 1787 until superseded by Section 3 of the 20th Amendment, ratified January 23, 1933, but not effective until January 1937, when the new Congress assembled January 3, and the new president was inaugurated January 20. Section 3 provides:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become president. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither the President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. (Emphasis added.)

In 1886 Congress passed the second presidential succession law, at the urging of President Grover Cleveland. The president pro tem and Speaker were removed from the line of succession. They were replaced by the seven members of the president’s Cabinet then extant, in order of creation. In 1947 Congress made a final revision, which still stands. The Speaker and president pro tem were re-inserted in front of the Cabinet heads, but with their order in the line of succession reversed.

The presidency of Dwight Eisenhower brought into sharp relief the risks of presidential vacancy in the modern era. Ike suffered a major heart attack in 1955, a blockage in his intestine in 1956 and, later that year, a mini-stroke that left him temporarily unable to speak. Vice-president Nixon and Ike’s chief of staff, Sherman Adams, ran the administration — in contrast to the Wilson regency, openly in public view. At one point, Adams called Nixon and told him to prepare to assume the presidency in the next 24 hours. But Ike rapidly recovered.

To remove uncertainty to the degree possible, in the absence of any adopted proposals for reform, Ike wrote a 1958 memorandum to his vice-president, attorney-general and secretary of state, setting forth procedures to follow in event of his inability to continue. The Eisenhower procedures carried over to the Kennedy and early Johnson years. The election of a young, apparently healthy president in 1960 had frozen reform efforts; JFK’s assassination put reform back on the table, but with 1964 an election year, Congress could only hold preliminary hearings.

President Johnson went 14 months without a sitting vice-president, until Hubert Humphrey was sworn in at LBJ’s 1965 Inauguration. LBJ having made presidential succession reform a top priority, during the 1965-66 Congressional session the 25th Amendment was passed by large bipartisan majorities, and sent to the States for ratification. In February 1967, the Amendment was formally ratified.

Since ratification, all succession crises to date have been successfully resolved by the 25th Amendment. Section 1 provides that if a president cannot continue for the remainder of a term, the vice-president shall become president. Section 2 provides that the new president shall nominate a vice-president, who then must be confirmed by a majority vote in the House and in the Senate. These provisions were implemented after the October 1973 resignation of Vice-President Spiro Agnew, and after the August 1974 resignation of President Richard Nixon. After Agnew’s departure, Nixon appointed Gerald Ford; after Nixon departed, Ford appointed former New York Governor Nelson Rockefeller. During the periods between their nominations and their confirmations — two months for Ford; four months for Rockefeller — had the president permanently left the office, House Speaker Carl Albert (D-OK) would have become Acting President. When asked about this, Albert, neither his own nor anyone else’s idea of a president, replied: “Lord, help me. I pray every night it doesn’t happen.”

Section 3, covering voluntary disability, took longer to become accepted practice. President Reagan did not formally invoke the 25th Amendment after being shot, as his advisers feared that a sidelined president might tempt adversaries to take advantage. It wasn’t until 2003, when George Bush 43 had a colonoscopy, that the 25h Amendment was publicly invoked. On that and in 2007 when again Bush 43 underwent that procedure, Vice-President Cheney was Acting President for a couple hours each time.

As Acting President, Cheney assumed the “powers and duties” of the president, but did not hold the office of the presidency. Only after a president permanently leaves office, can the vice-president hold the office of the presidency. No other official can hold the office upon succession, a situation which arises in event of a double vacancy of president and vice-president. Congressional officials (Speaker of the House and president pro tem of the Senate) and Cabinet officials can only act as president.

Which brings us to the current crisis, one that for the first time ever, involves the possible application of Section 4, covering involuntary presidential disability. In simplified form, whenever the vice-president and a majority of the Cabinet notifies Congress that the president is unable to govern as president, yet is unwilling to step aside, a battle royal begins. If the president transmits to the Congress his intention to return to the presidency, it takes a two-thirds vote in both Houses to prevent the president’s return.

During the 25th Amendment debates on the Senate floor in 1965, several senators cautioned that cabals might exploit the situation for political advantage. Senator Birch Bayh (D-IN), the Amendment’s sponsor, replied:

I have more faith in the Congress acting in an emergency in the white heat of publicity, with the American people looking on. The last thing Congress would dare to do would be to become involved in a purely political move.

For his part, Senator Sam Ervin (D-SC), noted for his scholarly knowledge of the Constitution, said:

God help this nation if we ever get a House of Representatives, or a Senate, which will wait for a President to die so someone whom they love more than their country will succeed to the Presidency.

Senator Ervin’s comment applies equally in cases of attempted removal of a president, either via impeachment and conviction, or by the sidelining of a president whom a majority of the public concludes was pushed aside for political gain, rather than for genuinely evident presidential inability.

Comes now, 2024. A hyper-partisan legacy and social media conduct “lawfare” to prevent Donald Trump from even being able to continue his campaign; and former president Trump, for his part, inflames his opponents by making 2020’s election irregularities a central part of his campaign. Voters are deeply divided — and in large measure unhappy with the apparent choice they face this fall.

Few believe that a manifestly weakened president can handle the immense daily workload of the presidency; those behind the scene resemble the clandestine regency that arose for the last 17 months of Woodrow Wilson’s second presidential term, triggered by the massive stroke Wilson suffered. Then, Wilson’s second wife, Edith Bolling Galt, along with Wilson’s personal physician, Dr. Cary Grayson, and his private secretary, Joseph Tumulty, effectively ran the government. But many things were left undone, things only a president could do: veto bills — 28 bills became law because the president was unable to cast a veto; and appoint executive branch officials and judges. Vice-President Alfred Marshall, petrified of the First Lady, stayed on the sidelines. Secretary of State Robert Lansing tried to get Wilson to step aside, and for his pains was fired by the president. In 1919 there were neither prescribed procedures in place, nor standards for implementing them, even given Wilson’s manifest presidential inability.

Today, Jill Biden clearly wields the main power behind the throne. Various advisers, most of whom held senior posts under former president Obama, represent a cabal that is running the country. The president refuses to take any test for mental acuity, or for possible use of amphetamines (“uppers”) before public appearances; his schedule is notably lighter than that of his modern predecessors. The medical reports his physician has released are veritable studies in information opacity, far less extensive and detailed than those of preceding presidents. By contrast, Donald Trump, succumbing to pressure from Beltway journalists and commentators, took the Montreal Cognitive Assessment Test, and aced it.

Bottom Line

The bald fact of the matter is that given the infinite gradation of mental states and physical frailty, and the extreme political risks of a challenge, no formulation for involuntary removal can satisfy. Myriad alternative schemes were carefully considered in depth during the 1956-1966 period, to no avail. Section 4 was a serious attempt to resolve what has proven during Biden’s presidential term to be an unresolvable problem.

With activists on the warpath in both parties, a president whose inability is on public display and clearly getting worse, and a cackling cipher of a vice-president widely regarded as shockingly unfit to ascend to the Oval Office, the succession crisis of Summer 2024 is deepening. As our allies fret over our struggles, our adversaries seek to exploit a consequently weakened America.

Put simply, absent civic virtue, a commodity increasingly rare, no provision for involuntary removal can work smoothly. One can only repair to Senator Ervin’s 1965 warning: “God help this nation.”

John C. Wohlstetter is author of Presidential Succession: Constitution, Congress and National Security(Gold Institute Press, 2024).