Is the Twenty-fifth Amendment Really an Option?
John Feerick, the eighty-nine-year-old law professor who, in 1964, wrote the bulk of the Twenty-fifth Amendment, is used to people asking him questions about the niceties of replacing a sitting President. Mostly, he dodges them. The other day, in his tidy office at Fordham Law School, he talked about the amendment’s concept of “inability,” in terms of a President’s fitness for office—but steered clear of Donald Trump. “You cannot remove powers and duties from a President without the Vice-President agreeing,” Feerick said, speaking generally. He has a full head of white hair, and wore a gray suit and orthopedic sneakers.
Feerick’s signature creation, the Twenty-fifth Amendment, has been in the news lately, most recently when President Trump was hustled out of the White House Correspondents’ dinner, after an intruder showed up with alleged plans to murder the President and top members of the Cabinet. Naturally, questions arose about the line of succession. If the gunman had been successful, Chuck Grassley, the ninety-two-year-old president pro tempore of the Senate, who skipped the dinner, would have been sworn in as President. “Half the Cabinet at least was there,” the House Speaker, Mike Johnson, who is second in line and was present at the event, said. “They’re going to have to reëvaluate this.”
Section 1 of the Twenty-fifth Amendment states that “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” (Curiously, J. D. Vance was rushed off the stage before Trump was.)
Feerick’s involvement began in 1963, when he was a newly minted graduate of Fordham Law with a job at Skadden Arps, handling small-claims-court cases. He published an article in the Fordham Law Review about Presidential succession, an issue that had come up during the Eisenhower Administration, when the President weathered several grave illnesses. (“Eisenhower really wasn’t able to function for a good while,” Feerick said.) “I sent the article to President Kennedy, I sent it to Robert Kennedy, to Ted Kennedy,” he said. He also sent it to Arthur Krock, the venerated Times columnist, who responded with an admiring note, saying, “I wish Congress were as much interested as you and I.”
Weeks later, John F. Kennedy was assassinated, and Krock devoted his next column to Feerick’s argument. (“Clem!” Feerick called to his assistant, asking her to find the clip, amid shelves containing books he has written. “This one—‘From Failing Hands: The Story of Presidential Succession’—is out of print,” he said.)
Feerick was heartsick; he’d seen J.F.K. and his wife in a ticker-tape parade in New York. Soon, the brand-new President, Lyndon Johnson, “took an interest in the subject,” Feerick said. The article, which Feerick’s wife, Emalie, had helped with, went viral, or as viral as something could go in the sixties. Feerick was summoned to Washington to start writing what would become the Twenty-fifth. “I had to ask the law firm if they would pay me to stay overnight and take a train or plane down there,” he remembered. “I mean, I had no money. My parents were immigrants.”
Feerick spent a lot of time in D.C. One day, he said, “I got there late because the planes weren’t running. And I walked right up to the White House from the gate! I opened the door of the White House. Which I guess would be impossible today.”
Among the twelve people enlisted to work on the amendment, Feerick was the expert on Presidential vacancies. “There were eight times when Presidents died in office and Vice-Presidents succeeded,” he said. Half of these deaths were assassinations—Lincoln, Garfield, McKinley, and J.F.K. (Lincoln’s son Robert was either present at or near the first three deaths. After McKinley’s, Robert declined invitations to Presidential functions, saying that a “certain fatality” followed him.)
Feerick is also an expert in Presidential incapacity. “In conversations about drafting an amendment during Eisenhower, they talked about the ‘insanity’ of the President,” he said. Section 4 of the amendment states that the Vice-President and a majority of the Cabinet can boot a President if they determine him to be “unable to discharge the powers and duties of his office.” Before the Twenty-fifth, Presidents had informally handed over power to the Vice-President during medical issues or temporary absences, but always voluntarily. “An insane President would probably disagree with such a determination,” Feerick said.
Last month, Trump tweeted that, if Iran did not agree to his demands, “a whole civilization will die,” prompting several calls to oust him using the Twenty-fifth. Representative Jamie Raskin introduced a bill that would create a bipartisan commission of physicians, psychiatrists, and retired government officials, which could act alongside the Cabinet in the case of the amendment being invoked.
Feerick, asked to consider whether Trump’s unhinged posts, one of which included an A.I. image of himself as Jesus, might substitute for a medical diagnosis, opted to take a long view. “There are Presidents galore from the country’s history that you can find issues with their mental health,” he said. He brought up Richard Nixon. After the Watergate scandal broke, “Nixon was having a lot of difficulty, according to reports I read, and drinking and so forth.” Senior White House staff discussed invoking the Twenty-fifth as Nixon spiralled into paranoia. But Nixon resigned, sending Gerald Ford to the Oval Office.
Feerick took pains to explain that Section 4 is not designed to be a tool used by an opposition party to remove a President. The amendment, he said, was born out of logistical concerns, such as the possibility of a President becoming “unconscious for any of a number of reasons and out of reach during a crisis,” or “if his plane went down.” After Ronald Reagan was shot, Alexander Haig, the Secretary of State, ran into the press room and declared, “I am in control here in the White House!,” even though the Twenty-fifth had not been invoked, and he was actually fourth in line.
Despite the section’s wonkily procedural intentions, it is still regularly mentioned by Trump’s opponents, and Feerick is often contacted by reporters for his expertise. “I’m not getting involved in what the Vice-President should do,” he said. During Joe Biden’s Administration, when the Twenty-fifth came up in debates about whether a President can be too old, Feerick did speak up about one vital point. He remembers saying, at a panel, “Age is individual-specific.” ♦