THE LAW: 170-Year-Old Riddle

When the Constitutional Convention at Philadelphia in 1787 began to hammer out the language of Article II, Section I, Clause 6 (specifying conditions under which the Vice President assumes the presidency), Delaware’s Delegate John Dickinson raised a troublous question. Asked Dickinson: What is meant by the term disability, and who is to be the judge of it? Dickinson got no answer. Last week, 170 years and 33 Presidents later, there was still no answer.

Responsible for the failure to act is Congress. In the absence of legislation, Cabinets that have faced the problem have foundered on a secondary question: Should the Vice President, upon assuming a disabled President’s duties, become President for all of the remainder of the term?

Doubt & Drift. The question arose in 1881 when James Garfield was shot in the back by a deranged lawyer in the Washington railroad terminal and lay disabled for 80 days. During that time he performed only one official act, signing an extradition paper. The Cabinet tried to cope with such problems as post-office fraud scandals and sagging foreign relations, considered urging Vice President Chester Alan Arthur to take over the functions and authority of the President during his disability, but feared the legal implications. The Government drifted until Garfield died.

In 1919 Woodrow Wilson, fearing that he could not regain power, refused to surrender responsibility to Vice President Thomas Marshall, even though he had suffered a severe stroke which had paralyzed his left side and heavily impaired his speech. Stricken in September 1919, Wilson was incapacitated much of the 17 months until his term ended. Neither Marshall, the Cabinet nor Congress was told the truth about his condition;* state papers were sent to Mrs. Wilson, who decided which could be shown the Chief Executive without exciting him, which must be passed on to aides for action. For some two months, Wilson was able to transact almost no executive business; during that period 28 Acts of Congress became law because he had not acted on them in the specified ten-day period. The President was unable to attend a Cabinet meeting for eight months. After Secretary of State Robert Lansing took affairs into his own hands and called 21 Cabinet meetings, President Wilson demanded his resignation for usurping presidential powers.

Less prolonged, but a case in point, was the last illness of Warren Harding, who lay disabled for five days in San Francisco’s Palace Hotel before he died. Harding’s attack was diagnosed at first as a stomach upset, was later complicated by bronchopneumonia. But after his death attending physicians, including Dr. Ray Lyman Wilbur (sometime president of the A.M.A., president of Stanford University and later Herbert Hoover’s Secretary of the Interior) reported: “We all believe he died from apoplexy or the rupture of a blood vessel in the axis of the brain near the respiratory center.” Close associates of Franklin Roosevelt agreed that his health had deteriorated shockingly in the weeks before a massive cerebral hemorrhage killed him in 1945.

Action at Last? But it was not until President Eisenhower was first taken seriously ill in office that Congress earnestly commenced to consider the problem. After Ike’s heart attack in September 1955 and his ileitis attack last year, Ike strongly urged that Congress act on the problem. A special five-member Judiciary subcommittee, appointed to study presidential inability, heard a proposal from then Attorney General Herbert Brownell for a constitutional amendment that would spell out the mechanics of certification: 1) the President could declare himself in writing unable to discharge his powers and duties and surrender them to the Vice President, 2) the Vice President, upon receiving approval in writing from a majority of the Cabinet, could pronounce the Chief Executive incapable of fulfilling his obligations adequately and would become Acting President until the President recovered. The House subcommittee listened, referred the problem to the full Judiciary Committee, where it is still pending.

Will the next session of Congress, after 170 years, act? One member of the committee is not sure. Said he: “We all know that it is a major problem of our time. But we seldom have a sense of urgency unless there is a real crisis staring us in the face.”

* Another chief of government whose illness, originally described as “need of a complete rest.” was later disclosed to be a stroke: Winston Churchill. In March 1955, Churchill admitted to the House of Commons what few people had known: that two years earlier he had been paralyzed down the left side of his body.