THE PRESIDENCY: The Succession Agreement

President Eisenhower’s three major illnesses have confronted the U.S. with a black-and-white problem in an area where its Constitution is disturbingly grey: What happens when a President, by reason of physical disability, is unable to carry on?

Quietly, almost casually, in his press conference last week, the President gave his own precedent-breaking answer: he has made his own arrangements for Vice President Richard Nixon to take over in the event of his disability.

Between himself and the Vice President, said Dwight Eisenhower, there is “a rather unique state of mutual confidence and even liking and respect . . . There is such a clear understanding between Mr. Nixon and myself, an understanding to which others around me are completely privy, that it is inconceivable, that is, between him and me, that any misunderstanding could occur.”

Troublesome Point. In fact, although he declined to answer the question directly at his news conference, the President had written a letter of instructions to Nixon. The details of the arrangement remained secret at week’s end, but its gen eral line could be traced by past and present Administration attitudes.

President Eisenhower has long made clear his overall ideas. Said he in 1956: “Unless I felt absolutely up to the performance of the duties of the Presidency, the second that I didn’t, I would no longer be there in the job.” But the U.S. Constitution raises problems that the President, with the best of intentions, cannot necessarily solve alone. It provides (Article II, Section 1. Clause 6): “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 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 the Vice President …” Even during the Constitutional Convention, Delaware’s Delegate John Dickinson raised a troublesome point: What is meant by “inability,” and who is to be the judge of it?

Basic Question. The Eisenhower Administration has consistently taken the position that there should be a constitutional amendment providing that 1) the President, in writing, may declare himself disabled and delegate his powers to the Vice President, or 2) if the President should be unable to make such a declaration (because of severe illness, mental incapacity, or whatever), the Vice President —upon receiving written approval from a majority of the Cabinet—could pronounce the President disabled, and could take over. Any agreement between President Eisenhower and Vice President Nixon would necessarily include some such provisions.

No sooner was the President’s press conference over last week than there were noisy complaints from Congress, where Democratic leaders have argued that the problems of disability-succession should be solved, not by constitutional amendment, but by statute—preferably one which gives Congress a say in the decision about when a President is actually disabled. The Administration is almost certain to veto any such statute, mostly on grounds that the statute itself might be found unconstitutional, thereby invalidating the official acts of a Vice President exercising presidential powers. Yet in that very argument, the Administration raised an even more basic question: If a statute would probably be found unconstitutional, then how could a mere semiprivate agreement between a President and a Vice President escape the possibility of invalidation by the Supreme Court?