The Law: When Law and Politics Collide: Presidents and the Use of the Twenty-Fifth Amendment

Article excerpt

What does history tell us about how the Twenty-Fifth Amendment has worked when presidents have been temporarily incapacitated? The results are spotty, mixed, and, to a large degree, unknown, because the decision whether to invoke the amendment proceeds from the advice of the White House counsel. That office operates under the radar screen and out of public scrutiny much of the time. Additionally, because administrations consider continuity of government plans a matter of national security, and classify them, they are unavailable to the public (Associated Press 1996). What evidence we have of presidential consideration of the operation of the Twenty-Fifth Amendment comes from personal recollections of the principal players and from secondary sources. To the degree that a pattern of behavior emerges, it is that counsels often are lonely (and sometimes, lone) advocates for strict adherence to the spirit and letter of the amendment, while the presidents they serve, urged on by their political advisers, are loathe to crank up the temporary power transfer machinery because (1) it makes a president appear weak; (2) it provides the vice-president with a new and unparalleled source of visibility, stature, and authority; and (3) it opens up the possibility for denying the president the opportunity to return to office when the disability ends.

What we see from examining this interplay between White House counsels, on the one hand, and presidents and their political advisers, on the other, is a rich illustration of the fundamental dilemma that White House counsels face in many areas of their responsibilities--being caught in the crosshairs of law and politics. There may be few other matters as bedrock as determining who shall lead the country; in cases of the Twenty-Fifth Amendment, a decision to start the process of a temporary power transfer may initiate a journey into uncharted waters. That is a heavy burden for anyone to bear, when advising a president that such a time has come.

The Role of the White House Counsel in Presidential Incapacitation

This is an area where the lack of an institutional memory is atrocious. The White House should not have to reinvent a process each time the POTUS (President of the United States) has surgery. (B. Culvahouse, White House Counsel, 1987-1988, on the recurring issue of temporary presidential medical disability; Borrelli, Hult, and Kassop 2000, 6.)

   There's a Twenty-Fifth Amendment, that's all--we didn't inherit much
   on that but we did develop a big decision tree thing which worked
   when (President Bush) had his thyroid problem and I think has worked
   since. That was a big contribution to the Counsel's office, the work
   that we did to put that all together.... I don't think we involved
   anybody outside the White House but I sat down and did it with the
   Chief of Staff ... (and) the White House doctor.... What happens: If
   X then go to Y; if Z then go back to A. It's just a decision tree on
   how to handle disability and it worked like a charm faultlessly,
   perfectly when he went into the hospital (C. Boyden Gray, White
   House Counsel, 1989-1993; Borrelli, Hult, and Kassop 2000, 6.).

As the lawyer to the institution of the presidency, the White House counsel's primary responsibility is to insure that actions taken by a president and his administration are consistent with the Constitution and laws of the United States. As a member of the White House staff, the counsel is also sensitive to the political needs and policy preferences of the chief executive who he or she serves. Consequently, it is not uncommon for the counsel to confront situations where political needs conflict with legal/constitutional requirements or, at the very least, where navigating a route that respects both may be ambiguous and challenging. When it comes to the role of the counsel in interpreting and advising the president on implementation of the presidential disability pro visions of the Twenty-Fifth Amendment, it is inevitable that this classic (and uncomfortable) conflict will arise, because there is no more sober occasion for determining both adherence to constitutional prescriptions during an unexpected event and assurance of a president's continued political viability (or, short of that, assurance of continuity of service in the office of the presidency). …