From Failing Hands, aptly provocative in its title, and scholarly and entertaining throughout its several hundred pages, presents the drama, the history, and the legal and political problems involved in presidential succession in the United States

Hickman, George V., Jr.

English

University of San Diego

BOOK REVIEWSFROM FAILING HANDS. By JoHN D. FEERICK. New York:Fordham University Press. 1965. Pp. 368. $6.95.From Failing Hands, aptly provocative in its title, and scholarlyand entertaining throughout its several hundred pages, presents thedrama, the history, and the legal and political problems involved inpresidential succession in the United States.This book by Mr. Feerick1 could scarcely be more timely. Comingoff the press in early 1965, it antedated by several months the passageof a proposed constitutional amendment2 on presidential inabilityand vice presidential vacancy by the 89th Congress of the UnitedStates. It should serve as a stirring and authoritative source of in-formation and analysis to state legislators and private citizens duringthe ensuing ratification processes and the public debates in the statesof the Union.Well known even to school children is the fact that throughoutthe history of the United States executive power has passed blood-lessly and almost instantaneously to the vice president upon thedeath of a president. Yet, how many people know that the framersof our Constitution probably intended a vice president to becomeonly an "Acting President" when a president died in office? JohnTyler in 1841 upon the death of William Henry Harrison establishedthe precedent that a vice president succeeds as "President" to suchan unexpired term.Nevertheless, the Tyler decision to become "President," based onan interpretation of article II, section 1, clause 54 of the Consti-tution, would doubtless have horrified the "Committee on Style" ofthe Constitutional Convention. This "Committee," however, certainly1 A member of the Advisory Committee of the American Bar Association's SpecialCommittee on Presidential Inability and Vice-Presidential Succession.2 CONG. Rlc. S. J. Res. 1, 89th Cong., 1st Sess., III CONG. REC. 15028 (1965)(proposed 25th Amendment).8 Thus avoiding "the intestine shock, and furious close of civil butchery" Shakes-peare, Henry IV, Part One, Act 1, Scene 1.4 "In case of the Removal of the President from Office, or of his Death, Resignation,or Inability to discharge the Powers and Duties of the said Office, the Same shalldevolve on the Vice President, and the Congress may by Law provide for the Case ofRemoval, Death, Resignation or Inability, both of the President and Vice President,declaring what Officer shall then act as President, and such Officer shall act accordingly,until the Disability be removed, or a President shall be elected."134BOOK REVIEWSfacilitated Tyler's interpretation by an ambiguous condensation oftwo separate sections into one (pp. 48-51).Certainly incalculable good has flowed from the prompt assump-tion by vice presidents of both the offices ind the powers and dutiesof the eight presidents who have died in office (App. A). Severaltimes a president has died when major crises,5 national or interna-tional, have faced the nation. An executive, possessed of only tem-porary authority and disturbed by the uncertainties and vagaries ofsome sort of impromptu special presidential election, would needto be superhuman to make wise decisions.Mr. Feerick, in his introduction, sketches the dramatic events inDallas on November 22, 1963. The assassination of President Ken-nedy, the swearing-in of President Johnson, and the competent,thorough steps taken by the new chief executive are all vividlyportrayed. The effective passing of the baton of leadership empha-sized both the practical value of the Tyler tradition and the wisdomof President Kennedy's program of sharing executive departmentproblems with Vice President Johnson. Not by "potent art ' but byknowledgeable, prearranged study of domestic and internationalproblems can our vice presidents ably replace in this atomic age apresident who dies in office.Thus, the perpetuation of the Tyler precedent has enabled ourexecutive department to function well. But suppose a president isonly disabled, mentally or physically, or both? There exists no clearconstitutional provision for temporarily transferring executive powerto the vice president when the president is unable to carry out hisduties. Article II, section 1, clause 57 of the Constitution exacts fromthe vice president the same obligations when the president dies aswhen he is unable to discharge the powers and duties of his office.Historically, vice presidents have been loath to step in and act fora disabled president; they have not wished to be usurpers. Further-more, by acting, they possibly would be permanently depriving thepresident of his office even after the disability no longer existed.Chapter 9 of Mr. Feerick's book discusses at great length the firstcase of presidential inability. President Garfield, shot four months5 Witness President Truman's problem in April, 1945 with the nation engaged in aglobal war, and the cold war matters requiring President Johnson's decisions inNovember, 1963.0 Shakespeare, The Tempest, Act V, Scene 1.7 See note 4 supra.SAN DIEGO LAW REVIEW[after his inauguration by Charles Guiteau, hovered between life anddeath for almost three months. No real executive duties were per-formed by President Garfield between July 2, 1881, and his deathon September 19 of that year. Chester A. Arthur, then vice president,refused to become acting president, even though as time dragged onGarfield's entire cabinet requested him to do so.History is replete with incidents involving the replacement, usurpa-tion, or overthrow of crowned heads, but in our democracy everyvice president confronted with a deteriorating executive department,directly caused by presidential inability, has refused to step into thebreach. At President Eisenhower's request, at the very beginning ofhis first term, Vice President Nixon had an expanded role in execu-tiye matters, but he "walked on eggs" during President Eisenhower'sconvalescence following a heart attack in 1955 (pp. 221-23).SIn 1958 President Eisenhower developed a written agreementcovering any future disability he might have (p. 228). This agree-ment, essentially called for the President to declare, if he were able,his own disability to perform the powers and duties of his office. Ifunable to so communicate, then the Vice President with such con-sultations as he deemed desirable would act as president until theinability had ended. Finally, the President would decide when hewould resume his duties and powers.Substantially this same written agreement was adopted by Presi-dent Kennedy and Vice President Johnson and later by PresidentJohnson and Vice President Humphrey (pp. 228-29). Such an agree-ment does not, of course, have the force of law; furthermore, it couldbe countermanded at any time by a president who might becomesuspicious of the motives and good intentions of the vice president.As an analogous example, President Wilson was largely unableto perform the duties of his office during the last year and a half ofhis second term. Vice President Marshall, despite many suggestionsfrom the Cabinet and others that he act as president, firmly refusedto do so. With serious domestic and international problems needingsolution, Secretary of State Lansing frequently called together theCabinet for conferences and discussions. Eventually President Wilsondemanded Secretary Lansing's resignation for "assumption of Presi-dential authority" (p. 177). Whether or not this was the real motivefor the request is not too clear. At any rate, it shows the potentiallyephemeral nature of a written agreement of the type developed by[Vol. 3BOOK REVIEWSPresident Eisenhower, especially if the incumbent president shouldbe impaired in judgment by virtue of his inability or for otherreasons.Mr. Feerick discusses (pp. 248-57) the pros and cons of methodsfor determining the inability of the president. Separation of powers,power politics, governmental cliques are all involved. The AmericanBar Assocation's "Conference Consensus" (App. D) represents amajor non-political solution of the problem, a solution substantiallyembodied in the proposed 25th amendment.8Another related problem, discussed in detail in chapter 20, in-volves the need for, and the method of, filling the office of vice presi-dent when that official becomes president, dies, resigns, or otherwisecreates a vacancy. The nation for over twenty per cent of its existence(p. 258) has been without a vice president. Sixteen vice presidents(App. A) have not completed their terms; seven of these vacanciesexisted for more than three years. The Constitution has no provisionfor this contingency; article II, section 1, clause 5 authorizes Con-gress to "declare what Officer shall then act as President" when boththe president and the vice president are unable to be the chiefexecutive.Perhaps in the eighteen hundreds the nation could sputter alongwithout a vice president. Today, a vice president's embryonic exec-utive role looms highly important. The high stakes being played ininternational politics demand a named, knowledgeable substitutealways ready on an instant to play a dead or disabled president'shand. Sharp debates occurred in Congress prior to July 6, 1965,1 as tohow, by whom, and from what ranks a new vice president would bedesignated whenever a vice presidential vacancy occurred. Of majorimportance, however, is the recognition of the problem and the estab-lishment of constitutional ways to settle it.Finally, Mr. Feerick's book contains much more than can ade-quately be discussed in a book review. He lists a dozen pages of selectbibliographical material; his footnotes are legion; his discussion ofsuccession provisions of American colonies, states of the Union, andmodern foreign nations is scholarly and interesting. He remains ob-8 Of interest is the fact that the Chairman of the American Bar Association's SpecialCommittee on Presidential Inability and Vice Presidential Vacancy is Herbert Brownell,the Attorney General during President Eisenhower's inability in 1955.9 The date of the passage of the proposed 25th amendment. Twenty states hadratified the proposed amendment as of February 8, 1966.1966]138 SAN DIEGO LAW REVIEWjective throughout the book by presenting the arguments for andagainst the issues and problems inherent in the subject matter ofhis book.From Failing Hands is fascinating. It is filled with anecdotes. Itmoves. Here and there it achieves a sort of "Who-Done-It" urgency.I found that I preferred to read it again and again rather than takethe time to write about it.GEORGE W. HICKmAN, JR.** Member of the Bar, District of Columbia.

From Failing Hands. By John D. Feerick

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From Failing Hands. By John D. Feerick

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