We the People: Succession of Power

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Speaker 2 Well, it depends on where they're placed. They can be wherever you want them,

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Speaker 4 the pockets, so that no sound.

Speaker 6 On a warm day in November 1963, local Dallas TV station, WFAA, was broadcasting a show about women's fashion.

Speaker 2 There's zippers up the sides so that the jacket will fit tightly around the hips, keeping that straight, sleek look that it's

Speaker 8 out of nowhere,

Speaker 8 the show was stopped.

Speaker 9 Good afternoon, ladies and gentlemen.

Speaker 9 You'll excuse the fact that I'm out of breath, but about 10 or 15 minutes ago, a tragic thing from all indications at this point has happened in the city of Dallas. Let me quote to you this:

Speaker 6 when the broadcast came back on air, a man appeared on screen looking pale and in shock.

Speaker 9 He says, President Kennedy and Governor John Colony have been cut down by assassins' bullets in downtown Dallas.

Speaker 8 The American president, John F. Kennedy, along with the governor of Texas, were shot.
Newsrooms were in chaos trying to figure out what happened.

Speaker 3 Mr. Kennedy was struck in the head.
The first reports say that President Kennedy has been seriously wounded by this shooting.

Speaker 3 President Kennedy is reported to be fighting for his life in a Dallas hospital, but reports conflict.

Speaker 6 For about an hour, there was no official announcement of whether the president or vice president were dead or alive.

Speaker 8 John Fearick had become obsessed with the possibility of a moment just like this, but he wasn't expecting it so soon.

Speaker 5 My name is John Fearick. I'm a professor at Fordham Law School.

Speaker 6 Today, John is a professor at the law school he graduated from.

Speaker 10 He's 88 years old.

Speaker 5 I am most likely the oldest professor full-time at Fordham Law School.

Speaker 8 But back in 1961, two years before Dallas, John was an idealistic, idealistic, newly minted attorney on a mission to convince people that something essential was missing from the Constitution.

Speaker 8 Clear instructions for what should happen if a U.S. president was unable to do his job.
He researched it for years.

Speaker 11 One of the most critical and intriguing constitutional questions ever presented for solution is what happens when the President of the United States becomes incapable of discharging the powers and duties of his office.

Speaker 8 This is an excerpt from an article John published in the Fordham Law Review in October 1963.

Speaker 11 Does the vice president become president for the remainder of the term or does he merely act as president during the period of inability? The Constitution is not explicit.

Speaker 8 John focuses in on Article 2, Section 1, Clause 6 of the Constitution. It goes like this.

Speaker 12 In case of the removal of the President from office, office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president, and the Congress may by law provide for the case of removal, 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.

Speaker 8 Okay, now to translate, what that basically means is that if the president dies or resigns or is unable to serve the role of president, then the vice president would serve in his place.

Speaker 8 And if the vice president can't serve, then Congress has to decide which officer of government should step in as president. But that's about it.
No more specifics.

Speaker 8 Now, at the time, this issue was not exactly top of mind for most Americans, because John's article came out in October 1963, a time when President Kennedy seemed vital and healthy.

Speaker 8 But John had lots of questions, like who decides when a president is unable to serve? What happens next? Is the transfer of power to the vice president temporary or permanent?

Speaker 8 What if there is no vice president? To him, the fact that the current president was young and healthy, that the questions didn't seem urgent, made it the ideal time to hash it out.

Speaker 5 I didn't want the article to just go on a library shelf.

Speaker 6 So he started mailing out copies.

Speaker 6 He sent them everywhere to current and former politicians. He even sent one to the White House.

Speaker 5 I had a response from an assistant to President Kennedy on November 13.

Speaker 6 It went like this.

Speaker 5 President has received your letter. and asked me to thank you for sending him the accompanied copy of your article.

Speaker 6 An acknowledgement. Not bad.
But then the personal responses started coming in. He got one from the Attorney General, Robert F.
Kennedy, John F. Kennedy's brother.

Speaker 5 It says as follows. Dear Mr.
Furrick, thank you very much for sending me a copy of your article on the subject of presidential inability.

Speaker 5 I appreciate you bringing it to my attention, as this is a subject which we have been studying here in the department for some time. Sincerely, Robert F.
Kennedy.

Speaker 6 Then he hears from Richard Nixon.

Speaker 5 Dear Mr. Farak, I appreciate your sending me a copy of your article on presidential inability.
This is a subject in which I am most interested.

Speaker 6 You aimed high.

Speaker 5 Well,

Speaker 5 I didn't know better.

Speaker 6 And it didn't stop with politicians. He wrote a letter to the editor of the New York Times.

Speaker 6 In all of these letters, he emphasized, this problem has come up before in our history, more than once, and Congress has never solved it.

Speaker 5 Presidents are mortal, President Garfield's shooting, President Wilson's stroke, and President Eisenhower's heart attack rendered the respective president temporarily unable to exercise the powers and duties of his office.

Speaker 5 Despite this, Congress has consistently failed the American people by not acting to eliminate the possibility of a gap in the executive because of the confusion existing over the meaning of the succession provision of the Constitution.

Speaker 6 In the end, John didn't just want a discussion, he wanted more. He wanted a constitutional amendment.

Speaker 5 I think I had an expectation that

Speaker 5 people who had an interest in the subject would examine the article and with the hope that it would make a case for reform.

Speaker 5 Six days later, the president was assassinated.

Speaker 5 It's official now. The president is dead.

Speaker 5 There's only one word to describe the picture here, and that's grief and much of it. It's official as of just a few moments ago.

Speaker 8 November 22nd, 1963, John F. Kennedy became the eighth U.S.
president to die in office.

Speaker 8 Suddenly, the alarms John Fierich had been raising became very loud, and John believed that then, finally, someone would do something about it.

Speaker 8 I'm Ramteen Arabloui.

Speaker 6 And I'm Rand Abdir Fattah.

Speaker 6 You're listening to Through Line from NPR.

Speaker 8 Written into the Constitution is a way to change it, but we do that less and less.

Speaker 8 On this episode of our ongoing series, We the People, the story behind one of the last amendments to the Constitution, the 25th, and the man who got it done.

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Speaker 5 Part one,

Speaker 12 the question of succession.

Speaker 6 Ready? All right, I'm recording.

Speaker 5 All right.

Speaker 8 I'm ready. You're always ready.

Speaker 8 True professional. All right, so you and through line producer extraordinaire Lawrence Wu went to Fordham University to interview our main character in this story, John Fierick.

Speaker 8 All right, so take me through what happens when you get there.

Speaker 6 It was a cold,

Speaker 5 cold day, Round.

Speaker 6 The worst. The worst.
And I remember I took the subway and I met Lawrence in the lobby.

Speaker 5 Okay.

Speaker 6 And then, you know, we turned on the recorder.

Speaker 8 As you have to do.

Speaker 6 And then we

Speaker 6 got on the elevator, rode up to, I don't remember which floor it is, but when we got off the elevator,

Speaker 6 I think it was John's assistant. She very nicely like walked us to his office.

Speaker 5 Hi, everybody, Carrie.

Speaker 5 Hi, nice to meet you.

Speaker 5 I love it, Tuff. Run.
Oh, it's so shifty.

Speaker 6 Yeah, Sarah's been. And like from the moment that

Speaker 6 we walked into the office,

Speaker 6 honestly, like,

Speaker 6 this is going to sound cheesy, but it was like walking into a time capsule.

Speaker 5 Hello.

Speaker 5 Hi.

Speaker 6 Hi, I'm Run.

Speaker 5 Have we met before?

Speaker 6 We have not met before, but... What is your name? Rund.
Run.

Speaker 5 R-E-N.

Speaker 6 R-U-N-D.

Speaker 5 Like, Rund with the D.N. Nice to see you.

Speaker 6 Like, you look around, and it was like all around. I mean, it was interesting.
Half of the office was covered with like framed pictures of him and like

Speaker 6 congresspeople and lawyers and other people that he'd worked with over the years. And then the other half of the office was covered with pictures of like his grandkids.

Speaker 6 And then, you know, he had like all these law books,

Speaker 6 you know, along the wall.

Speaker 8 And did it seem like he was eager because people aren't just knocking on his door every day wanting to talk about this story?

Speaker 6 I think it had been a while.

Speaker 6 Yeah, I think it had been a while. He's been at Fordham, you know, like for so much of his, you know, academic life.
And obviously, that's where he got his start.

Speaker 6 That's where he worked on the 25th Amendment.

Speaker 6 Because it's so special to be here, right?

Speaker 5 I mean, Fordham is where it all began.

Speaker 8 John Fearick was born in 1936 in New York. His parents had arrived in the U.S.
not long before.

Speaker 5 My parents were immigrants and no formal education. I was the firstborn.

Speaker 8 John experienced a similar upbringing that I and many of you listening experienced.

Speaker 5 I grew in understanding of the importance of getting an education and in using it to make a difference.

Speaker 8 Despite that pressure, John wasn't a good student as a kid, no matter how hard he tried. But his parents weren't accepting any excuses.

Speaker 5 It was a slow start for me in grammar school, and my father insisted one summer that I not go out until I understood math much better than my grades indicated.

Speaker 8 Whatever his parents did, it worked. In fact, he did well enough to get a scholarship to go to Fordham University in the Bronx, New York, a school just a short subway ride away from where he grew up.

Speaker 8 He lived between two worlds, one at college and one back in his blue-collar neighborhood. He went to classes during the day and worked shifts at a local supermarket in the evenings.

Speaker 5 I felt a real commitment working in the supermarket, be as good as you can be and serving people at the cast register and putting food on shelves.

Speaker 8 Even with the job, he found time to be a part of Fordham's student government.

Speaker 5 I was vice president of my class and also the student body. That service experience was very important because I saw that you could make differences.

Speaker 8 And it was in the college student government where John had his first experience with the problem of succession of power in the most nerdy, dramatic kind of way.

Speaker 5 I remember when I was vice president of the student body at Fordham College in my last year, I had to deal with the inability of a newly elected president.

Speaker 8 Inability, as in the president is unable to serve.

Speaker 5 What with that?

Speaker 6 A medical issue.

Speaker 5 Yeah, he had a medical issue.

Speaker 5 And

Speaker 5 as soon as he was elected, he resigned.

Speaker 8 The president of the student government stepped down, and suddenly everyone had an opinion about who should succeed him. Some people called for a new election.

Speaker 8 But remember, John was the student body vice president.

Speaker 5 I said that under the Constitution, the vice president becomes the president, and

Speaker 5 it should not be a new election.

Speaker 6 a standoff but forham had a student court i'm not joking here that would decide these kinds of matters and they sustained the the position i had taken that the student constitution provided for succession that's dramatic for a student body like council it kind of it's almost like a mock trial of what would come later a little bit

Speaker 8 so john became president of the student government because because the student constitution spelled out that process.

Speaker 8 President resigns, then vice president becomes president, in this case, John Fearick.

Speaker 8 And he found this whole process really motivating.

Speaker 5 It became clear to me by the time I got into my last year of college that going to law school would be very supportive of an interest in going into elective politics and making a difference.

Speaker 8 So John applied for law school at Fordham University and got in.

Speaker 8 He thrived there. He was the editor of the school's law review.
But he didn't forget about presidential succession. He couldn't.
It was all over the news.

Speaker 3 Eisenhower seemed perfectly healthy in these films made in 1955 just before his sudden heart attack. His illness revealed once again America's unpreparedness to deal adequately with such an emergency.

Speaker 8 In 1955, President Dwight D. Eisenhower had a major heart attack.

Speaker 3 In the Denver church where Ike worshiped, in churches and synagogues all across a shocked nation, America joined in spirit with Vice President Nixon facing grave burdens in a situation not adequately defined by constitutional law.

Speaker 8 The president was hospitalized and right away people started asking

Speaker 8 Who's going to run the White House while he's on the mend?

Speaker 8 Well, first place they might go was the Constitution to figure it out.

Speaker 8 Okay, Article 2, Section 1, Clause 6 of the Constitution says that if the President is no longer able to discharge his duties because of removal from office, death, resignation, or inability, then the Vice President assumes the powers and duties of the President.

Speaker 8 Okay, so then what happens? People quickly realize that the Constitution didn't say anything beyond what was in Article 2.

Speaker 8 For example, would the vice president just be a caretaker until a new election was held, or would he be the legitimate president?

Speaker 8 And so, with President Eisenhower's mounting medical troubles, it wasn't clear who was going to decide if and when the vice president, Richard Nixon, would take over his duties.

Speaker 8 The two men eventually did work out a deal. Nixon would serve as acting president until Eisenhower returned.
Disaster averted. But John Fearick wasn't satisfied.

Speaker 5 I saw that there was a problem of inability.

Speaker 8 Remember, John had experience with this kind of thing and he loved it.

Speaker 5 It tied to my interest in the Constitution, so I started to collect information.

Speaker 8 That is an understatement. John began obsessively researching the history of this issue.
Even after he graduated and got a job as a lawyer, he kept going.

Speaker 5 I used to go to the Fordham Library at the Rose Hill campus, and if it was a holiday, I worked on it whenever I could.

Speaker 5 I was putting in a lot of hours at the law firm, and I wanted to take a look at the history of terms of the problem itself.

Speaker 6 What kinds of historical examples were you coming across as you were digging into the research?

Speaker 5 Wildred Wilson,

Speaker 5 James Garfield.

Speaker 8 Okay.

Speaker 8 Here we're going to stop and I'm going to take you on a fun journey into the past cases where a president died and there was some lack of clarity about who would take on their role.

Speaker 8 Let's start with President William Henry Harrison, the ninth president of the United States. His inauguration was on a cold, rainy day in 1841.

Speaker 8 Standing outside in the rain, he gave the longest inaugural speech in American history. He spoke for nearly two hours.
Anyway, he came down with pneumonia and died a month later.

Speaker 8 His vice president, John Tyler, quickly assumed his office. He was the first vice president to become president after the president died.

Speaker 8 It set up a new precedent because up to that point, no president had died in office. And again, there was no explicit instructions in the Constitution about what to do.

Speaker 8 But interestingly, President Tyler never appointed a vice president and himself nearly died in a sailing accident three years later.

Speaker 8 And then there was President James Garfield, the 20th President of the United States. He was shot at a train station in Washington, D.C.
in July 1881.

Speaker 8 He survived but was severely injured and bedridden for weeks. He wasn't dead, and people tried everything to keep him alive.

Speaker 8 Even Alexander Graham Bell, the inventor of the telephone, tried his newly created metal detector to help doctors try to find where the bullet was lodged in the president's body. But it didn't work.

Speaker 8 And Garfield couldn't really function as president president as an infection slowly destroyed his body.

Speaker 8 Garfield ultimately lived for 80 days, and the entire time, many people in the country wondered, who should serve as president?

Speaker 8 There was basically no acting president until Garfield died and the vice president took his place. And finally, there was another famous case, this time from the 20th century.

Speaker 8 In 1919, Woodrow Wilson, the 28th president of the United States, had a massive stroke, which incapacitated him for the remainder of his presidency.

Speaker 8 Many historians believe his wife, Edith Wilson, was effectively acting as president in his absence for nearly a year and a half until the end of his term.

Speaker 8 Through his research, John Fearicks saw all these cases and realized that even though this problem had come up repeatedly in U.S. history, no one had ever crafted a permanent solution.

Speaker 5 I was shocked by that.

Speaker 8 And so he decided he was going to to channel that shock into writing an article about it.

Speaker 5 And of course,

Speaker 5 being a former editor of the Law Review, I had a pathway to writing about the problem of president's inability. And that became my most important writing.

Speaker 8 His October 1963 article in Fordham Law Review.

Speaker 5 It was called The Problem of President's Inability. Will Congress Ever Solve It?

Speaker 8 The Problem of Presidential Inability. Will Congress Ever Solve It?

Speaker 5 Question mark.

Speaker 8 Question mark.

Speaker 6 Well, I guess this is the thing, right? Because, you know, you were writing it at a time when John F. Kennedy is in office, a young, you know, strapping president.

Speaker 6 And I guess I wonder, why did you think this was so important? Like, you, it's, because it sounds like, I mean, you were spending your weekends, your holidays working on this question.

Speaker 6 Why did you feel like the average person should even care? Why did you think that that was an important

Speaker 6 problem to solve?

Speaker 5 The articles I read and the learning that I developed indicated that there was really a major problem here, and they just couldn't get their hands around how to solve it.

Speaker 6 And what, in the most simple terms, was the problem for the average person? And what could the potential consequences be of not solving it, I guess?

Speaker 5 Well, I guess one way to to look at it,

Speaker 5 go back to the Constitutional Convention.

Speaker 8 The Constitutional Convention was the big meeting that lasted the entire summer of 1787, where a group of delegates from the American states met in Philadelphia and wrote the U.S. Constitution.

Speaker 8 And they saw this coming, this problem of presidential succession that John was tackling almost 200 years later. The delegates actually discussed it.

Speaker 5 At some point in the convention, John Dickinson of Delaware, as I recall, says, what is an ability?

Speaker 5 He says that,

Speaker 5 who determines what is an inability?

Speaker 6 And he's asking this in like 1787.

Speaker 5 1787.

Speaker 5 And so

Speaker 5 what is an inability?

Speaker 5 What happens in the case of an inability, so to speak? And who determines it? And nobody answered him.

Speaker 6 What is the threat to the country potentially? or what is the threat hanging over the country in the event of

Speaker 6 an inability of the president?

Speaker 5 The article in a time of potential nuclear war.

Speaker 5 And if something happened to a president who was still alive after an assassination attempt or illness, for example, the consequences for the country would have been enormous.

Speaker 5 It would have been a crisis.

Speaker 11 A flash from Dallas coming up.

Speaker 8 A president is shot and John goes to Washington.

Speaker 12 This is Rachel from the Upper West Side of Manhattan, and you're listening to Through Line on NPR.

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Speaker 5 Part 2. The road to an amendment.

Speaker 15 Well, the president was shot in Texas. What is your reaction to that? Well,

Speaker 15 I tell you, it upsets me very much to hear that, because that's the only man that I got my trust in for president.

Speaker 8 On November 22nd, 1963, when President John F. Kennedy was pronounced dead, John Frierick was only two years out of law school.

Speaker 5 I remember being in a meeting as a young lawyer and receiving a call telling me the president had just been shot. We were all just in a state of shock hearing that.

Speaker 8 Even before that day, John was already laser-focused on the question of what would happen if a president suddenly couldn't serve.

Speaker 8 For about an hour, there was no official word if JFK was alive or dead. In that uncertainty, John gamed out the options.

Speaker 5 He clearly would have been disabled, and we would have had a crisis on our hands.

Speaker 5 with the ambiguity about the status of a vice president in a case of inability. Does he take the office for the rest of the term of the president, even if the president recovers?

Speaker 5 Or does he be just an acting president for the duration of the inability?

Speaker 5 And Arthur Kroc, a New York Times journalist who'd read John's article about this issue, publishes an article and makes reference to my article.

Speaker 16 What is inability?

Speaker 16 Who raises the question of when it has occurred and when it has ended? And who resolves these questions when they have been raised?

Speaker 16 Suppose a disabled president refuses to certify it, or if he asserts it, proclaims the end of his disability when it still exists. How is the government crisis to be met?

Speaker 5 And totally shocked when somebody told me that I was quoted in the New York Times, that they ought to crock, and then I started getting qualse.

Speaker 16 One of the best studies of the subject was published by John D. Fearick in the October 1963 issue of the Fordham Law Law Review.
His solution is a constitutional amendment.

Speaker 6 Suddenly, it looked like you almost predicted.

Speaker 5 Yeah, my life changed because somehow I started to get requests for the article.

Speaker 8 Things started moving fast and it became clear that John's writing and ideas could play a role in whatever came next.

Speaker 5 I realized that elective

Speaker 5 politics was not for me, but law reform and communicating through writings, through talks, would be

Speaker 5 who I am.

Speaker 8 Just a few weeks after President Kennedy's assassination, the American Bar Association, the ABA, announced a meeting called Special Conference on Presidential Inability.

Speaker 8 The lawyers were ready to dive in. It was scheduled for January 1964, and John was invited to be a part of it.

Speaker 5 The staff of the ABA, they had seen the reference to the article, and they recommended that this young lawyer in New York who wrote this article that was quoted in the Times should be invited to be a member of the group.

Speaker 8 All of the lawyers invited to the conference were given background materials in preparation.

Speaker 5 And the first document to read is my article.

Speaker 11 Our strength and survival depend on our having an able leader at the head of the executive branch at all times. The continuity of the executive should never be in doubt.
At present, it is.

Speaker 6 You had done all the work already, basically. Yeah.

Speaker 5 Oh, yeah, it was complete. The article was out there.

Speaker 11 A constitutional crisis exists. It is time that Congress act to resolve it once and for all.

Speaker 8 So, John goes to the ABA meeting in January. He's sitting around with all these lawyers.
One of them was even an elected politician, Democratic Senator Birch Bayh from Indiana.

Speaker 8 And they've all read his article. And obviously, they have some questions for John.

Speaker 5 Why, an amendment? Is there any issue about whether the president should be able to declare his own inability?

Speaker 8 So basically, can the president decide himself when he's not able to do the job anymore? Or should someone else make that call? Should the vice president?

Speaker 8 This was tricky territory.

Speaker 5 If you gave the authority only to the vice vice president, the American public are going to see a battle between

Speaker 5 the president and the vice president.

Speaker 5 It's going to look like a coup. It's like a coup.

Speaker 8 In other words, if it's just up to the VP to decide if the president is fit to serve, then what's stopping them from using that power to basically take over the presidency?

Speaker 5 So all of that we sort of worked through.

Speaker 5 And at the end of the day, put out

Speaker 5 recommendations.

Speaker 8 The biggest one being, we need a constitutional amendment.

Speaker 8 The ABA lawyers, including John, sketched out what this could look like.

Speaker 8 First, they said that if the president is unable to serve, then power goes to the vice president, who will serve either to the end of the term or until the president is able again.

Speaker 8 Who decides if the president is unable to serve?

Speaker 8 Well, the president himself can do that, or the vice president, as long as he has enough votes from the cabinet or some other body approved by Congress.

Speaker 8 Okay, so the ABA took these recommendations to Congress.

Speaker 5 Several of us on

Speaker 5 the conference also were invited to testify in subsequent days.

Speaker 16 Do you have some concern that it would be difficult for the vice president and also the cabinet members to act with the necessary degree of impartiality?

Speaker 16 Would they be torn between loyalty to the president and the vice president? I think all of these are legitimate questions for us to discuss before making a final decision.

Speaker 11 I feel this way, Mr. Chairman.
First of all, I feel that nobody outside of the cabinet would have the confidence of the people of the country.

Speaker 11 Certainly, the cabinet is a body that is recognized as consisting of people close to the president.

Speaker 8 This is from John Fearick's testimony in Congress. It wasn't recorded, so it's being reenacted here.
Senator Birch Bay is asking the questions.

Speaker 16 In other words, you don't think removal of a disabled president is something to be taken lightly?

Speaker 11 Not at all, Senator.

Speaker 11 I feel very strongly that any provision which we adopt should be weighed as heavily in favor of the president as possible, because it seems to me that this is the single greatest institution we have.

Speaker 11 And I would be very reluctant to see us set up a commission consisting of people who were neither appointed or elected.

Speaker 8 Eventually, a draft of a constitutional amendment worked its way through Congress with Senator Birch Bayh leading the way.

Speaker 6 This is top priority at this point.

Speaker 5 It was magnificent.

Speaker 8 It didn't immediately succeed. Congress adjourned without the House voting on it.
But Senator Birch Bayh didn't give up. In 1965, he introduced it again.

Speaker 6 How directly were you involved in terms of the deliberations on the Senate and House floors? Were you like

Speaker 6 running papers to people taking notes? Like how directly were you involved in that whole process?

Speaker 5 Well,

Speaker 5 in many ways, I had several roles.

Speaker 8 First, as an organizer, he became a part of the ABA's Young Lawyers Committee on Presidential Inability and Vice Presidential Vacancy.

Speaker 5 I did the best I could to energize the young lawyers of America, and we were very active talking to the members of Congress from our state, both the House and the Senate.

Speaker 8 Second, educating lawyers and the public about the amendments.

Speaker 5 I wrote articles on it in the ABA Journal.

Speaker 5 So in the ABA Journal at the time, today we got social media, we got so many publications, but at that time, that was an important publication. So the lawyers are getting educated all over America.

Speaker 5 You're educating them. So you were

Speaker 5 educating.

Speaker 6 You were really like shepherding it, it sounds like.

Speaker 5 People were carrying the material and the literature and passing it on.

Speaker 6 Yeah, I mean, that's the part of all this, you know, that I think it's easy to forget. Like, you're still in your, you're, you're in your 20s.

Speaker 6 You're pretty fresh out of law school when all this is happening. Like,

Speaker 6 it must have been a whirlwind to just be literally on the front lines of shaping the Constitution.

Speaker 5 Well, I was so busy, I don't think I focused on what was really happening. You know, I was working as a practicing lawyer.
I was putting in a lot of time.

Speaker 8 So after months of organizing and educating and Senator Birch Bay working his colleagues trying to get their votes, the bill was reintroduced.

Speaker 5 And when that was introduced in January of 65, they had 70 sponsors in the Senate. They all wanted to get their name on it.

Speaker 8 The bill passed both houses of Congress. But in order for the bill to become an amendment to the the U.S.
Constitution, three-fourths of state legislatures had to ratify it.

Speaker 8 It's very time-consuming and difficult to achieve. But in 1967, two years after the bill was introduced, the 25th Amendment to the U.S.
Constitution was ratified.

Speaker 8 John Fear's dream had become a reality.

Speaker 17 At the White House, House, a vital piece of legislation reaches President Johnson's desk.

Speaker 17 It's the 25th Constitutional Amendment, providing for the replacement of any disabled president or the filling of any vice presidential vacancy.

Speaker 8 The 25th Amendment has four sections. The first three are straightforward.

Speaker 8 Basically, collectively, they say that when a president is removed from office or dies or resigns, the vice president automatically becomes president.

Speaker 8 If a vice president dies or resigns, then the president nominates a replacement and that person has to be approved by votes from both houses of Congress.

Speaker 8 If a president sends a letter to Congress saying they can't continue their duties because they're unable physically or mentally, then the vice president takes on the president's duties until the president can do it again or there's another election.

Speaker 18 Availing myself of the constitutional option offered to this office by Section 3 of the 25th Amendment, which permits through a written declaration to temporarily transfer all powers of the presidency to the next in the constitutional line of succession.

Speaker 8 Anyone else who watches the show, The West Wing, like me, might remember when President Bartlett invoked the 25th Amendment after his daughter was kidnapped.

Speaker 8 There was no vice president, so he handed power to the Speaker of the House.

Speaker 18 I want it as clear as can be that this administration stands squarely behind and shoulder to shoulder with the acting president.

Speaker 8 Then there's section four, the longest section, the most controversial one.

Speaker 8 It basically says that the vice president and the cabinet or some other body designated by Congress can determine if the president is unable to serve.

Speaker 8 If they get together and vote that the president is mentally or physically incapacitated, then the vice president will assume the powers and duties of the president.

Speaker 6 I'm wondering if you can explain what the thinking was in terms of making it pretty, you know, like a really high bar, essentially, to get to the point where

Speaker 6 a president is being declared, you know, as having an inability.

Speaker 5 We start with the principle that

Speaker 5 people choose a president,

Speaker 5 as we recently did. for a term of four years.

Speaker 5 And that's a major part of the Constitution.

Speaker 5 So it made an amendment makes it clear, but goes to Congress. The vote is

Speaker 5 in two houses, and it takes two-thirds of each house. And it was felt that that was really protective of the four-year term.
And nobody wanted a process on edibility where

Speaker 5 we got to make an instant decision.

Speaker 5 And it could be a crisis if you don't make it. President's plane went down, you can't find the president, whatever it might be.

Speaker 8 Coming up, the 25th Amendment gets its first test.

Speaker 11 Hi, my name is Alistair Hething, and I am a professor of history at Muskingum University in New Concord, Ohio.

Speaker 11 I often use your show in my classes. You are listening to Through Line from NPR.

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Speaker 6 Part three,

Speaker 12 the 25th.

Speaker 8 Before Richard Nixon resigned in 1974 following the Watergate scandal, there was his vice president, Spiro Agnew.

Speaker 19 The American people deserve to have a vice president who commands their unimpaired confidence and implicit trust. For more than two months now, you have not had such a vice president.

Speaker 8 During the Watergate investigation, which implicated Nixon in a major political scandal that was rocking the country, a separate investigation was happening involving Agnew.

Speaker 8 There were allegations that he had been involved in bribery while serving in Maryland politics, including his role as governor. Agnew called these allegations damned lies.

Speaker 8 And at least to the public, Nixon backed him the charges that have been made against him

Speaker 8 and which he has denied publicly he has denied to me privately on three occasions but the pressure for agnew to resign was growing he told nixon first in october 1973 then he told the country on national television

Speaker 19 in this technological age Image becomes dominant. Appearance supersedes reality.
An appearance of wrongdoing, whether true or false in fact, is damaging to any man.

Speaker 19 But more important, it is fatal to a man who must be ready at any moment to step into the presidency.

Speaker 8 Spiro Agnew's resignation left Richard Nixon without a vice president, which meant that six years after the 25th Amendment was ratified, it got its first test. The amendment has four parts.

Speaker 8 The one that concerns the vice presidency is Section 2.

Speaker 5 Section 2.

Speaker 8 John Frierick, who helped draft the 25th Amendment, reads it for us.

Speaker 5 Whenever there's a vacancy in the office of the vice president, the president shall nominate a vice president who shall take office upon confirmation by a majority vote of both houses of Congress.

Speaker 5 And it was used

Speaker 5 for the first and only time

Speaker 5 during the period of 1973 and 74.

Speaker 5 when the vice president resigned from office the president nixon was able to nominate Gerald Ford the minority leader of the house of representatives to be the new vice president who was confirmed within two months after the nomination on today having confirmed the nomination of Gerald R.

Speaker 4 Ford

Speaker 4 of the state of Michigan to be vice president of the United States

Speaker 4 The proceedings required by section two of the 25th amendment to the United States Constitution have been complied with.

Speaker 8 So Gerald Ford became the vice president.

Speaker 8 Then the following year, President Richard Nixon resigned, which meant that under the 25th Amendment Section 1, newly confirmed Vice President Ford would now become President Ford.

Speaker 8 He then nominated his new vice president, again under Section 2, Nelson Rockefeller. So within a year, the 25th Amendment was invoked three separate separate times.

Speaker 5 We never speculated about that scenario, that's for sure. I mean, we'd never had anything like that in our history.

Speaker 6 As someone who had helped to, you know, build this amendment that was becoming very, very critical in this chaotic moment around the Watergate scandal, what did that look like for you, realizing this was having a very, very direct impact on the country's future?

Speaker 5 I was just thrilled, obviously, like so many of us, because Watergate was terrible.

Speaker 5 But keep in mind, the process involved both houses of Congress

Speaker 5 filling a vacancy in the vice presidency.

Speaker 5 And every district in the country had a representative in Congress. They wanted to get as close to the people as possible without a popular election, because you'd have an electoral college election.

Speaker 5 And the House had to be included in every district in the country.

Speaker 8 This wouldn't be the only time the 25th Amendment would be invoked.

Speaker 8 Section 3, which allows the president to initiate a power transfer, that was used once by Ronald Reagan, twice by President George W.

Speaker 8 Bush, and once by President Joe Biden, all for being under anesthesia for medical procedures. The only part of the amendment that has never been used is Section 4.

Speaker 8 That's the one where power is taken from the president. It basically says that the vice president and the cabinet can determine if the president is unable to serve.

Speaker 8 If they get together and vote that the president is physically or mentally incapacitated, then the vice president will assume the powers and duties of the president as acting president.

Speaker 8 Section 4 almost had to be invoked when President Ronald Reagan was shot in 1981. A bullet was about an inch from Reagan's heart and he had to undergo surgery, but it wasn't invoked.

Speaker 8 People also mentioned Section 4 more recently when talking about former President Joe Biden's age and when President Trump's opponents questioned his capacity to lead at the end of his first term.

Speaker 8 But so far, all that discussion has only been hypothetical.

Speaker 6 Obviously impossible to predict the future, but I am curious, given your lifetime of work on all sorts of issues relating to the Constitution. And we have been working on a series about amendments.

Speaker 6 And

Speaker 6 this is

Speaker 6 one of the last amendments to have ever been passed. What do you think is the future of the 25th Amendment specifically and the amendment process generally?

Speaker 5 I do think at the end of the day, we've been through

Speaker 5 a lot of issues in our country's history. We had, you know,

Speaker 5 the Confederacy and

Speaker 5 a long time before women could vote and participate, and African-American women, even when other women could vote.

Speaker 5 We've gotten, we've been able to move beyond that.

Speaker 5 The way I see the world, I respect our Constitution.

Speaker 5 I hear presidents of both parties say, talk about the Constitution as part of their advocacy. It's a written constitution.
It's been the longest written constitution in the history of the world.

Speaker 5 And it makes clear from the start the sovereignty of the people, we the people. And if you want to change the Constitution, it's not easy.

Speaker 5 But I don't rule out another constitutional amendment, even though it's very hard. And I have the confidence that the American people,

Speaker 5 whether you understand the Constitution or not, you do understand there's something out there called the Constitution.

Speaker 6 It's

Speaker 6 rare to hear someone speak hopefully about any of this, frankly, today. It feels like the popular sentiment is despair, is

Speaker 6 pessimism. What fuels your hope?

Speaker 5 Well, I said to students the other day:

Speaker 5 we all have an obligation as lawyers to keep hope alive because of the rule of law and our Constitution. And it's not easy.
No.

Speaker 5 But that doesn't mean it can't be done.

Speaker 5 I'm not somebody who gives up hope. And I was just that young lawyer that

Speaker 5 thought that Congress should do something about the 25th Amendment.

Speaker 6 I feel like it's especially, you know,

Speaker 6 I don't know, powerful kind of having this conversation with you, sitting here in Fordham, where like all this began. And I think it's kind of beautiful that

Speaker 6 you're here. Like Like, it's it's sort of awfully nice of you.

Speaker 5 I mean, that just

Speaker 5 it's uh

Speaker 5 you know, when I when I read the pages in there last night, I, you know, I wouldn't be able to do that today, uh, and it brought back a lot of

Speaker 5 a lot of memories of people who are all gone, you know, and

Speaker 5 and and yet,

Speaker 5 like myself, uh,

Speaker 5 had a belief in America.

Speaker 8 That's it for this week's show. I'm Ram Teen Arab Louis.

Speaker 6 I'm Randabil Fatdeh, and you've been listening to Through Line from NPR.

Speaker 8 This episode was produced by me and me and Lawrence Wu.

Speaker 5 Julie Kay, Anya Steinberg, Casey Miner, Christina Kim, Devin Katayama, Sarah Wyman, Irene Noguchi.

Speaker 8 And a special thank you to Sarah Wyman, who did most of the reporting and writing for this episode. You are amazing and we miss you here at Blue Line.

Speaker 6 Voiceover work in this episode was done by Neil Rausch and Zach Forrest.

Speaker 8 Thank you to Janette Oakes, Keondre Starling, Johannes Durgy, Tony Cavan, Nadia Lancey, Edith Chapin, and Colin Campbell.

Speaker 6 Fact-checking for this episode was done by Kevin Vogel. This episode was mixed by Robert Rodriguez.

Speaker 6 Music for this episode was composed by Ramteen and his his band Drop Electric, which includes Naveed Marvy, Sho Fujiwara, Anya Mizani.

Speaker 8 And finally, if you have an idea or like something you heard on the show, write us at throughline at npr.org.

Speaker 6 Thanks for listening.

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