Given the current makeup of the executive branch, it’s not hard to imagine a scenario in which Secretary of State Mike Pompeo might, with the help of an aggressive attorney general, William Barr, challenge any attempt by Nancy Pelosi to ascend to the presidency if both Trump and Pence are incapacitated by Covid-19—perhaps even preemptively putting out a legal opinion that Pompeo is legally next in line for the acting presidency.
Could Nancy Pelosi assume the acting presidency and fire Barr to get her own contrary legal opinion? Would Barr treat such an order as legitimate? Would the Supreme Court weigh in? How those questions would be answered would almost certainly hinge less on actual legal fights and more on vague public sentiments—questions such as whether the president or vice president looks likely to recover.
“The nation could thus be deeply divided, in a hard-to-resolve way, on the very basic question: Who is the (acting) president of the United States?” legal scholars Jack Goldsmith and Ben Miller-Gootnick wrote back in March at the beginning of the Covid-19 pandemic.
The 25th Amendment was a product of the Cold War, a desire to bring clarity to presidential succession as nuclear missiles collapsed time and space such that American government needed to know minute-by-minute who was eligible to succeed to the presidency. Until it was ratified in the late 1960s, in fact, the presidential line of succession had been a strange amalgamation of informal secret letters, confusing and shifting congressional legislation, and a seemingly unintentional misinterpretation of the Constitution itself.
Even when the Founders sat down to debate presidential succession, it wasn’t an academic argument. In an era when daily life was much more uncertain and hazard-filled, colonial governors had a track record of high mortality—nearly a third had died in office. Who should take over in the event of a president’s death? Gouverneur Morris of Pennsylvania originally argued for the chief justice of the Supreme Court, while others pushed for the president of the Senate; however, both proposals seemed to the Founders to inappropriately mix the branches of government. The heir to the executive should come from the executive branch, so a late suggestion came to establish the “Vice-President,” who would be elected in the same manner as the president, while also serving as the president of the Senate on a day-to-day basis.
After the vice president, U.S. law later laid out only the House speaker and the president pro tempore of the Senate in the line of succession for most of America’s first century—a period when four presidents and five vice presidents died in office. It was a thin bench for the highest office in the land. Moreover, there was no mechanism at all for dealing with a sick or incapacitated president, so for more than a hundred years, the United States dodged constitutional crises only through luck and chance. Sixteen different times—a period totaling nearly 38 years—in the country’s first nearly 200 years, the U.S. had been without a vice president. Seven of the first 34 presidents—one out of five—suffered some period of incapacitation, during which time there wasn’t really anyone technically able to execute the powers of the presidency.
When, in 1841, William Henry Harrison became the first president to die in office, a spirited debate unfurled in Washington over whether Vice President John Tyler actually assumed the presidential office or merely the duties and power therein. John Quincy Adams, himself a former president and in 1841 a member of Congress, believed that Tyler was merely the “Acting President” or “Vice President, Acting as President.” Tyler moved into the White House and, despite ongoing attacks from his political opponents who would refer to him as “Your Accidency,” he was never seriously challenged as president; for years to come, though, he would return unopened any mail that came to the White House addressed to “Acting President” or “Vice President Tyler.”
The odd thing, Constitutional scholars now agree, is that Tyler was almost certainly wrong about becoming president. Little was known in the 1840s about the debates that went on during the Constitutional Convention—Madison’s notes from the debates, for instance, were only published for the first time in 1840, and the first major scholarly review of the Convention wasn’t published until 1911. But subsequent study has shown that the Founders clearly intended for the vice president to merely “act” as president during a vacancy or incapacity. At least three other sections of the Constitution actually refer specifically to the vice president only acting as president. The only way the Founders ever intended for someone to become president was to be elected by the nation; anyone else would merely be “acting.” Yet Tyler’s precedent would guide the nation for the next 120 years. No one questioned the “president” title when Andrew Johnson took over from Abraham Lincoln’s assassination or when Calvin Coolidge took over after President Warren G. Harding’s death from a heart attack.
Picking a successor for vice president was trickier—and many times impossible. Through the 19th century, Congress elected the speaker and Senate president pro tem only while the body was in session, meaning that those posts sat vacant through the long periods of congressional recess. When Grover Cleveland’s vice president, Thomas Hendricks, died in 1885, Congress was out of session, and had anything happened to Cleveland, no one knew who would become president. Presidential aides were so concerned that they recommended Cleveland not even travel to Indiana to attend Hendricks’ funeral. That potential crisis finally nudged Congress to act, and in 1886 it added Cabinet members to the line of succession ahead of the congressional leaders.
Harry Truman, 60 years later, tried to reverse that, arguing that the speaker of the House has the closest thing to a national electoral mandate after the elected president. As a result, in 1947 Congress passed a law that outlined the modern succession line—the vice president, the speaker, the Senate president pro tem, and the Cabinet secretaries in descending order of their department’s founding (leading to today’s quirk that the Department of Homeland Security, one of the officials most versed in national security, is actually dead last in succession, although acting Secretary Chad Wolf is ineligible for the presidency since he’s not a Senate-confirmed secretary).
Beyond just a clear line of succession, the presidency after Truman made clear that the U.S. government needed to wrestle with presidential illness or incapacity too. Dwight D. Eisenhower was hospitalized for seven weeks after a 1955 heart attack amid the height of the Cold War. “It was not until two weeks after the heart attack that the tension in Washington was eased,” then-Vice President Richard M. Nixon recalled years later. “The ever-present possibility of an attack on the United States was always hanging over us. Would the President be well enough to make a decision? If not, who had the authority to push the button?” The next year, Eisenhower had urgent intestinal surgery, as most of the nation slept, from 2:30 a.m. to 4:35 a.m., an experience that left Nixon worried. “On several occasions afterwards, he pointed out to me that for the two hours he was under anesthesia, the country was without a Chief Executive, the armed forces without a Commander-in-Chief,” Nixon wrote later. “In the event of a national emergency during those two hours, who would have had the undisputed authority to act for a completely disabled President?” Then, amid the high-stress weeks of the Cold War following the launch of Sputnik, Eisenhower in November 1957 suffered a minor stroke that left him disoriented and his speech slurred.
Eisenhower’s answer was an informal agreement, hidden from the American people and unknown until decades later: In February 1958, he summoned Nixon and Attorney General William Rogers to the Oval Office and handed them a four-page letter outlining conditions under which the vice president could assume the powers of the presidency. He distributed just three copies—one to Nixon, one to Rogers and one to the secretary of State. He wrote that Nixon “after such consultations as seems to him appropriate” could just assume the powers of the presidency if Ike seemed unable to function. It was a wild, extra-constitutional arrangement—one that cried out for a more formal process in the age of nuclear weapons. In the years ahead, John F. Kennedy and Lyndon B. Johnson both wrote similar letters, a system that would work only as long as there was total trust between a president and a vice president. Otherwise, it was a literal recipe for a coup.
The letter of agreement between Kennedy and Johnson read, in part, “The Vice President agrees to serve as Acting President ‘after such consultation as seems to him appropriate under the circumstances’” and allowed the vice president to operate “with a free mind that this is what the President intended in the event of a crisis.” JFK’s assassination raised new problems and concerns (what if JFK had lain comatose after being shot, rather than dying immediately?) and left Johnson without a vice president for 1964. Through the end of that presidential term, House Speaker John McCormack kept in his Capitol office safe a secret two-page agreement that he and LBJ signed together on December 23, 1963, outlining when he could take over the presidency if Johnson fell ill or was otherwise incapacitated. “It is outside the law,” McCormack said later, “but it was the only thing that could be done under the circumstances.”
Finally, Congress moved on the 25th Amendment, which created the first-ever mechanism for replacing a vice president in the event of resignation, death or vacancy and created the first-ever system for dealing with presidential incapacity or illness. It arrived just in time: The resignation in 1973 of Nixon’s vice president, Spiro Agnew, amid the Watergate scandal was the first use of the 25th Amendment, allowing Gerald Ford to be nominated and confirmed by Congress as vice president—and later to succeed to the office and nominate his own vice president. It made Ford the first American ever to become president without being elected to either the presidency or vice presidency.
And yet there are two major holes still in the 25th Amendment and the related Presidential Succession Act that, at least until now, have remained only abstract and esoteric questions for presidential and constitutional scholars.
Dick Cheney himself figured out the first problem in the 25th Amendment itself: There is literally no mechanism for removing an incapacitated vice president from the line of succession. As Cheney—whose heart problems were well-documented—took office in 2001, he kept thinking about Woodrow Wilson, whose stroke had left him incapacitated for the final year and a half of his presidency and left his wife secretly managing the nation’s affairs. “I knew how important it was to ensure we had a plan in place for leadership succession and survival,” Cheney wrote later. “We had a duty to make sure an enemy attack could not result in decapitation of our government.”
For the Cheneys in the vice presidential mansion at the Naval Observatory, a vice presidential vacancy wasn’t too much of a thought exercise: One of Lynne Cheney’s novels, The Body Politic, published in 1988, had focused on the death of a vice president that the White House chose to cover up on the eve of critical primaries—setting up a Weekend at Bernie’s-style satire that followed the staff trying to ensure that no one noticed the vice president’s death.