Pod Insights Throughline We the People: Succession of Power About this episode The 25th amendment. A few years before JFK was shot, an idealistic young lawyer set out on a mission to convince people something essential was missing from the Constitution: clear instructions for what should happen if a U. S. president was no longer able to serve. On this episode of our ongoing series We the People, the story behind one of the last amendments to the Constitution, and the man who got it done. This story originally published in March 2025.
Guest:
John Feerick, Norris Professor of Law at Fordham Law School and author of The Twenty-Fifth Amendment - Its Complete History and Applications.
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Transcript 7,431 words · 22 speakers
Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
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0:18 Speaker 01 Well, it depends on where they're placed. They can be wherever you want them.
0:23 Speaker 02 Uh huh.
0:24 Speaker 01 Or the pockets so that no snail gets into it.
0:28 Rund Abdelfatah? On a warm day in November 1963, local Dallas TV station WFAA was broadcasting a show about women's fashion.
0:36 Speaker 01 Then there's zippers up the side so that the jacket will fit tightly around the hips, keeping that straight, sleek look that it should have in the arm.
0:45 Speaker 04 The show was stopped.
0:51 Speaker 05 Good afternoon, ladies and gentlemen. 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.
1:04 Rund Abdelfatah? When the broadcast came back on air, a man appeared on screen looking pale and in shock. He says...
1:11 Speaker 05 President Kennedy and Governor John Colley have been cut down by assassins' bullets in downtown Dallas.
1:16 Speaker 04 The American President, John F. Kennedy, along with the Governor of Texas, were shot. Newsrooms were in chaos trying to figure out what happened.
1:24 Speaker 05 Mr. Kennedy was struck in the head.
1:26 Speaker 06 The first reports say that President Kennedy has been seriously wounded by this shooting.
1:32 Speaker 05 President Kennedy is reported to be fighting for his life in a Dallas hospital, but reports conflict...
1:39 Rund Abdelfatah? For about an hour, there was no official announcement of whether the President or Vice President were dead or alive.
1:57 Speaker 04 John Feerick had become obsessed with the possibility of a moment just like this, but he wasn't expecting it so soon.
2:05 Speaker 07 My name is John Feerick. I'm a professor at Fordham Law School.
2:11 Rund Abdelfatah? Today, John is a professor at the law school he graduated from. He's 89 years old.
2:16 Speaker 07 I am most likely the oldest professor, full-time, at Fordham Law School.
2:23 Speaker 04 But back in 1961, two years before Dallas, John was an idealistic, newly-minted attorney on a mission to convince people that something essential was missing from the Constitution: clear instructions for what should happen if a US president was unable to do his job. He researched it for years.
2:44 Speaker 08 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?
2:58 Speaker 04 This is an excerpt from an article John published in the Fordham Law Review in October 1963.
3:04 Speaker 08 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.
3:15 Speaker 04 John focuses in on Article 2, Section 1, Clause 6 of the Constitution. It goes like this.
3:25 Speaker 09 "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 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."
3:58 Speaker 04 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. 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. 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. But John had lots of questions, like, who decides when a president is unable to serve? What happens next?
4:41 Speaker 04 Is the transfer of power to the vice president temporary or permanent? 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.
4:57 Speaker 07 I didn't want the article to just go on a library shelf.
5:01 Rund Abdelfatah? So he started mailing out copies. He sent them everywhere, to current and former politicians. He even sent one to the White House.
5:12 Speaker 07 I had a response from an assistant to President Kennedy on November 13.
5:17 Rund Abdelfatah? It went like this.
5:18 Speaker 07 President has received your letter and asked me to thank you for sending him the accompanied copy of your article.
5:25 Rund Abdelfatah? 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.
5:36 Speaker 07 It says as follows, Dear Mr. Ferri, thank you very much for sending me a copy of your article on the subject of president inability. 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.
5:56 Rund Abdelfatah? Then he hears from Richard Nixon.
5:58 Speaker 07 Dear Mr. Furek, I appreciate your sending me a copy of your article on presidents inability. This is a subject in which I am most interested.
6:07 Rund Abdelfatah? You aimed high.
6:10 Speaker 07 Well, I didn't know better.
6:13 Rund Abdelfatah? And it didn't stop with politicians. He wrote a letter to the editor of The New York Times. 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.
6:27 Speaker 07 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. 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.
7:02 Rund Abdelfatah? In the end, John didn't just want a discussion. He wanted more. He wanted a constitutional amendment.
7:10 Speaker 07 I think I had an expectation that people who had an interest in the subject would examine the article and with the hope that it would make a case for reform. Six days later, the president was assassinated.
7:35 Speaker 10 It's official now. The president is dead.
7:39 Speaker 10 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.
7:48 Speaker 04 November 22, 1963. John F. Kennedy became the eighth U.S. president to die in office. Suddenly, the alarms John Furek had been raising became very loud, and John believed that then, finally, someone would do something about it.
8:14 Speaker 04 I'm Ramtin Arablouei.
8:16 Rund Abdelfatah? And I'm Rand Abdelfatah. You're listening to Throughline from NPR.
8:22 Speaker 04 Written into the Constitution is a way to change it, but we do that less and less. 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.
8:43 Speaker 11 Hi. This is Mike from Brno in the Czech Republic. And you're listening to Throughline.
8:52 Speaker 11 A class act, this program.
9:02 Speaker 12 Stay tuned for the following announcements and messages from our sponsors.
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10:24 Rund Abdelfatah? Part one, the question of succession.
10:30 Speaker 04 Ready?
10:30 Rund Abdelfatah? All right, I'm recording.
10:32 Speaker 04 All right.
10:35 Rund Abdelfatah? I'm ready.
10:35 Speaker 04 You're always ready, Run, 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 Furek. All right, so take me through what happens when you get there.
10:53 Rund Abdelfatah? It was a cold, cold day.
10:55 Speaker 04 The worst.
10:56 Rund Abdelfatah? And I remember I took the subway and I met Lawrence in the lobby.
11:01 Speaker 04 Okay.
11:02 Rund Abdelfatah? And then, you know, we turned on the recorder.
11:06 Speaker 04 As you have to do.
11:07 Rund Abdelfatah? And then we got on the elevator, rode up to, I don't remember which floor it is. But when we got off the elevator, I think it was John's assistant, she very nicely like walked us to his office.
11:22 Speaker 02 Hi, how are you, Karen? Yes. Hi, good to meet you. I'm Paul Metzger.
11:27 Rund Abdelfatah? Run.
11:27 Speaker 02 Good to meet you.
11:28 Rund Abdelfatah? Yeah, Sarah's been. And like from the moment that we walked into the office, honestly, like, this is gonna sound cheesy, but it was like walking into a time capsule.
11:39 Speaker 04 Okay.
11:40 Rund Abdelfatah? Hello. Hi.
11:44 Rund Abdelfatah? Hi, I'm Run. Have we met before? We have not met before, but. What's your name? Run. Ren, R E N? R U N D, like run with the D. Oh, yeah, nice to see you. 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 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.
12:12 Speaker 04 Oh.
12:13 Rund Abdelfatah? And then, you know, he had like all these law books, you know, along the wall.
12:18 Speaker 04 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?
12:26 Rund Abdelfatah? I think it had been a while.
12:27 Speaker 04 Huh.
12:27 Rund Abdelfatah? 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. That's where he worked on the 25th Amendment. Because it's so special to be here, right? I mean, Fordham is where it all began.
12:46 Speaker 04 John Feerick was born in 1936 in New York. His parents had arrived in the US not long before.
12:53 Speaker 07 My parents were immigrants and no formal education. I was the first born.
12:59 Speaker 04 John experienced a similar upbringing that I and many of you listening experienced.
13:04 Speaker 07 I grew in understanding of the importance of getting an education and then using it to make a difference.
13:12 Speaker 04 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.
13:22 Speaker 07 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.
13:34 Speaker 04 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. 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.
13:58 Speaker 07 I felt a real commitment working in the supermarket, be as good as you can be and serving people at the cash register and putting food on shelves.
14:09 Speaker 04 Even with the job, he found time to be a part of Fordham's student government.
14:14 Speaker 07 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.
14:23 Speaker 04 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.
14:35 Speaker 07 I remember when I was vice president of student body at Fordham College in my last year, I had to deal with the inability of a newly elected president.
14:45 Speaker 04 Inability, as in the president is unable to serve?
14:49 Rund Abdelfatah? What would that mean? A medical issue?
14:52 Speaker 07 Yeah, he had a medical issue. And as soon as he was elected, he resigned.
14:58 Speaker 04 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. But remember, John was the student body vice president.
15:11 Speaker 07 I said that under the Constitution, the vice president becomes the president, and it's not going to, it should not be a new election.
15:19 Speaker 04 A standoff. But Fordham had a student court, I'm not joking here, that would decide these kinds of matters.
15:28 Speaker 07 And they sustained the position I had taken, that the student Constitution provided for succession.
15:36 Rund Abdelfatah? That's dramatic for a student body, like, counts. It kind of, it's almost like a mock trial of what would come later a little bit.
15:44 Speaker 04 So John became president of the student government because the student Constitution spelled out that process. President resigns, then vice president becomes president, in this case, John Feerick. And he found this whole process really motivating.
16:02 Speaker 07 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.
16:17 Speaker 04 So John applied for law school at Fordham University and got in. 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.
16:32 Speaker 13 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.
16:47 Speaker 04 In 1955, President Dwight D. Eisenhower had a major heart attack.
16:53 Speaker 13 In the Denver church where Ike worshipped, in churches and synagogues all across a shock nation, America joined in spirit with Vice President Nixon, facing grave burdens in a situation not adequately defined by constitutional law.
17:08 Speaker 04 The president was hospitalized, and right away, people started asking, uh, who's gonna run the White House while he's on the mend? Well, first place they might go is the Constitution to figure it out. 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. Okay, so then what happens? People quickly realized that the Constitution didn't say anything beyond what was in Article 2.
17:49 Speaker 04 For example, would the vice president just be a caretaker until a new election was held? Or would he be the legitimate president? And so with President Eisenhower's mounting medical troubles, it wasn't clear who was gonna decide if and when the vice president, Richard Nixon, would take over his duties. The two men eventually did work out a deal. Nixon would serve as acting president until Eisenhower returned. Disaster averted, but John Feerick wasn't satisfied.
18:21 Speaker 07 I saw that there was a problem of inability.
18:24 Speaker 04 Remember, John had experience with this kind of thing, and he loved it.
18:29 Speaker 07 It tied to my interest in the Constitution, so I started to collect information.
18:37 Speaker 04 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.
18:48 Speaker 07 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, I was putting in a lot of hours at the law firm, and I wanted to take a look at the history in terms of the problem itself.
19:04 Rund Abdelfatah? What kinds of historical examples were you coming across as you were digging into the research?
19:10 Speaker 07 Wilder Wilson, James Garfield.
19:14 Speaker 04 Okay, here we're gonna stop and I'm gonna 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. 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. 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. His vice president, John Tyler, quickly assumed his office. He was the first vice president to become president after the president died.
19:57 Speaker 04 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. But interestingly, President Tyler never appointed a vice president and himself nearly died in a sailing accident three years later. And then there was President James Garfield, the 20th president of the United States. He was shot at a train station in Washington DC in July 1881. He survived but was severely injured and bedridden for weeks. He wasn't dead and people tried everything to keep him alive. Even Alexander Graham Bell, the inventor of the telephone, tried his newly created
20:40 Speaker 04 metal detector to help doctors try to find where the bullet was lodged in the president's body. But it didn't work and Garfield couldn't really function as president as an infection slowly destroyed his body. Garfield ultimately lived for 80 days and the entire time, many people in the country wondered, who should serve as president? 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. In 1919, Woodrow Wilson, the 28th president of the United States, had a massive stroke, which incapacitated him for the remainder of his presidency.
21:24 Speaker 04 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. Through his research, John Furek saw all these cases and realized that even though this problem had come up repeatedly in US history, no one had ever crafted a permanent solution.
21:46 Speaker 07 I was shocked by that.
21:48 Speaker 04 And so he decided he was going to channel that shock into writing an article about it.
21:57 Speaker 07 And of course, 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.
22:07 Speaker 04 His October 1963 article in Fordham Law Review.
22:11 Speaker 07 It was called "The Problem of President's Inability: Will Congress Ever Solve It?"
22:15 Speaker 04 "The Problem of Presidential Inability: Will Congress Ever Solve It?"
22:20 Speaker 07 Question mark.
22:21 Speaker 04 Question mark.
22:25 Rund Abdelfatah? 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. 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. Why did you feel like the average person should even care? Why did you think that that was an important, uh, problem to solve?
22:57 Speaker 07 The articles I read and, and the learning that I developed indicated that there was a, really a major problem here, and, and they just couldn't get their hands around how to solve it.
23:09 Rund Abdelfatah? And what, what in the most simple terms was the problem for the average person? And what, what could the potential consequences be of not solving it, I guess?
23:17 Speaker 07 Well, I guess, one way to look at it, uh, I go back to the Constitutional Convention.
23:24 Speaker 04 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 US Constitution. And they saw this coming. This problem of presidential succession that John was tackling almost 200 years later, the delegates actually disgusted.
23:46 Speaker 07 At some point in the convention, John Dickinson of Delaware, as I recall, says, "What is inability?"
23:56 Rund Abdelfatah? Yeah.
23:56 Speaker 07 He says that who determines what is an inability?
24:01 Rund Abdelfatah? And he's asking this in like 1787.
24:03 Speaker 07 1787.
24:04 Rund Abdelfatah? Yeah.
24:05 Speaker 07 And so what is an inability? What happens in the case of an inability, so to speak? And and who who determines it? And nobody answered him.
24:17 Rund Abdelfatah? What is the threat to the country potentially? Or what is the threat hanging over the country in the event of, you know, an inability of the president?
24:26 Speaker 07 The article, a time of potential nuclear war. And if something happened to a president who is still alive.
24:35 Speaker 04 After an assassination attempt or illness, for example.
24:39 Speaker 07 The consequences for the country would have been enormous. It would have been a crisis.
24:50 Speaker 14 A flash from Dallas.
24:52 Speaker 04 Coming up, a president is shot and John goes to Washington.
25:03 Speaker 15 This is Rachel from the Upper West Side of Manhattan, and you're listening to Throughline on NPR.
25:11 Speaker 00 Stay tuned for the following announcements and messages from our sponsors. This message comes from ProLon with their five day fasting mimicking diet, a clinically developed nutrition program with the goal of promoting fat loss while protecting lean body mass. Learn more at prolonlife.com/NPR.
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26:31 Speaker 09 Part Two. The Road to an Amendment.
26:35 Speaker 10 Well, the president was shot in Texas. What is your reaction to that?
26:39 Speaker 16 Well, 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.
26:49 Speaker 04 On November 22nd, 1963, when President John F. Kennedy was pronounced dead, John F. Rick was only two years out of law school.
26:58 Speaker 07 I remember being at 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.
27:10 Speaker 04 Even before that day, John was already laser focused on the question of what would happen if a president suddenly couldn't serve. For about an hour, there was no official word if JFK was alive or dead. In that uncertainty, John gamed out the options.
27:28 Speaker 07 He clearly would have been disabled, and we would have had a crisis on our hands 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? Right. Or does he be just an acting president for the duration of the inability? And Arthur Kroc.
27:52 Speaker 04 A New York Times journalist who'd read John's article about this issue.
27:57 Speaker 07 publishes an article and makes reference to my article.
28:02 Speaker 17 What is inability? Who raises the question of when it has occurred and when it has ended? And who resolves these questions when they have been raised? 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?
28:24 Speaker 07 I was totally shocked when somebody told me that I was quoted in the New York Times, that they ought to crack, and then I started getting quills.
28:33 Speaker 17 One of the best studies of the subject was published by John D. Feerick in the October 1963 issue of the Fordham Law Review. His solution is a constitutional amendment.
28:45 Rund Abdelfatah? Because suddenly, it looked like you almost predicted.
28:49 Speaker 07 Yeah, my life changed. Because somehow I started to get requests for the article.
28:56 Speaker 04 Things started moving fast, and it became clear that John's writing and ideas could play a role in whatever came next.
29:04 Speaker 07 I realized that elective politics was not for me, but law reform and communicating through writings, through talks, would be who I am.
29:23 Speaker 04 Just a few weeks after President Kennedy's assassination, the American Bar Association, the ABA, announced a meeting called Special Conference on Presidential Inability. The lawyers were ready to dive in. It was scheduled for January 1964, and John was invited to be a part of it.
29:42 Speaker 07 The staff of the ABA, they had seen the reference to the article, and they recommended 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.
29:56 Speaker 04 All of the lawyers invited to the conference were given background materials in preparation.
30:01 Speaker 07 And the first document to read is my article.
30:04 Speaker 08 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.
30:17 Rund Abdelfatah? You had done all the work already, basically.
30:19 Speaker 07 Yeah, it was complete. The article was out there.
30:22 Speaker 08 A constitutional crisis exists. It is time that Congress act to resolve it once and for all.
30:34 Speaker 04 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 By from Indiana. And they've all read his article. And obviously, they have some questions for John.
30:50 Speaker 07 Why an amendment? Is there any issue about whether the president should be able to declare his own inability?
30:57 Speaker 04 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? This was tricky territory.
31:08 Speaker 07 If you gave the authority only to the vice president, the American public are going to see a battle between the president and the vice president.
31:18 Rund Abdelfatah? It'll look like a coup.
31:19 Speaker 07 It's like a coup.
31:21 Speaker 04 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?
31:30 Speaker 07 So all of that, we sort of worked through. And at the end of the day, put out the recommendations.
31:40 Speaker 04 The biggest one being, we need a constitutional amendment.
31:46 Speaker 04 The ABA lawyers, including John, sketched out what this could look like. 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. Who decides if the president is unable to serve? 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. Okay, so the ABA took these recommendations to Congress.
32:20 Speaker 07 Several of us on the conference also were invited to testify in subsequent days.
32:27 Speaker 17 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? 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.
32:45 Speaker 08 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. Certainly, the cabinet is a body that is recognized as consisting of people close to the president.
33:00 Speaker 04 This is from John F. Rix's testimony in Congress. It wasn't recorded, so it's being reenacted here. Senator Birch Bay is asking the questions.
33:10 Speaker 17 In other words, you don't think removal of a disabled president is something to be taken lightly?
33:18 Speaker 08 Not at all, Senator. 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, and I would be very reluctant to see us set up a commission consisting of people who were neither appointed or elected.
33:38 Speaker 04 Eventually, a draft of a constitutional amendment worked its way through Congress, with Senator Birch Bay leading the way.
33:47 Rund Abdelfatah? This is top priority at this point.
33:50 Speaker 07 Top priority. It was magnificent.
33:52 Speaker 04 It didn't immediately succeed. Congress adjourned without the House voting on it. But Senator Birch Bay didn't give up. In 1965, he introduced it again.
34:03 Rund Abdelfatah? How directly were you involved in terms of the deliberations on, you know, the Senate and House floors? Were you like, you know, running papers to people, taking notes? Like, how directly were you involved in that whole process?
34:18 Speaker 07 Well, in many ways, I had several roles.
34:21 Speaker 04 First, as an organizer, he became a part of the ABA's Young Lawyers Committee on Presidential Inability and Vice Presidential Vacancy.
34:30 Speaker 07 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.
34:42 Speaker 04 Second, educating lawyers and the public about the amendments.
34:46 Speaker 07 I wrote articles on it in the ABA Journal. So in the ABA Journal at the time, today we got social media, we get so many publications. But at that time, that was an important publication. So the lawyers are getting educated all over America.
35:03 Rund Abdelfatah? You're educating them. So you were educated. Yeah, you were really like shepherding it, it sounds like.
35:10 Speaker 07 People were carrying the material and the literature and passing it on.
35:14 Rund Abdelfatah? 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 in your twenties, you're pretty fresh out of law school when all this is happening. Like, it must have been a whirlwind to just be literally on the front lines of shaping the Constitution.
35:33 Speaker 07 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.
35:47 Speaker 04 So after months of organizing and educating and Senator Birch Bay working his colleagues trying to get their votes, the bill was reintroduced.
35:57 Speaker 07 And when that was introduced in January 65, it had 70 sponsors in the Senate. They all wanted to get their name on it.
36:06 Speaker 04 The bill passed both houses of Congress. But in order for the bill to become an amendment to the US Constitution, three fourths of state legislatures had to ratify it. It's very time consuming and difficult to achieve. But in 1967, two years after the bill was introduced, the 25th Amendment to the US Constitution was ratified. John F. Rix's dream had become a reality.
36:41 Speaker 06 At the White House, a vital piece of legislation reaches President Johnson's desk. It's the 25th Constitutional Amendment, providing for the replacement of any disabled president or the filling of any vice presidential vacancy.
36:54 Speaker 04 The 25th Amendment has four sections. The first three are straightforward. Basically collectively, they say that when a president is removed from office or dies or resigns, the vice president automatically becomes president. 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. 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.
37:33 Speaker 18 Availing myself of the constitutional option offered to this office by Section 3 of the 25th Amendment, which permits through written declaration to temporarily transfer all powers of the presidency to the next in the constitutional line of succession.
37:51 Speaker 04 Anyone else who watches the show, the West Wing like me, might remember when President Bartlet invoked the 25th Amendment after his daughter was kidnapped. There was no vice president, so he handed power to the Speaker of the House.
38:05 Speaker 18 I want it as clear as can be that this administration stands squarely behind and shoulder to shoulder with the acting president.
38:14 Speaker 04 Then there's Section 4, the longest section, the most controversial one. 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. 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.
38:39 Rund Abdelfatah? 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 a president is being declared, you know, as having an inability.
38:57 Speaker 07 We start with the principle that...
39:01 Speaker 07 People choose a president, as we recently did, for a term of four years. And that's a major part of the Constitution. So it made it an amendment, makes it clear. It goes to Congress. The vote is 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 to process an inability where we got to make an instant decision. 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.
39:47 Speaker 04 Coming up, the 25th Amendment gets its first test.
39:59 Speaker 19 Hi, my name is Aleister Hething, and I am a professor of history at Muskingham University in New Concord, Ohio. I often use your show in my classes. You are listening to Throughline from NPR.
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41:38 Speaker 09 Part Three. The Twenty-Fifth.
41:43 Speaker 04 Before Richard Nixon resigned in 1974 following the Watergate scandal, there was his vice president, Spiro Agnew.
41:51 Speaker 20 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.
42:05 Speaker 04 During the Watergate investigation, which implicated Nixon in a major political scandal that was rocking the country, a separate investigation was happening involving Agnew. 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." And at least to the public, Nixon backed him.
42:30 Speaker 10 The charges that have been made against him, and which he has denied publicly, he has denied to me privately on three occasions.
42:40 Speaker 04 But the pressure for Agnew to resign was growing. He told Nixon first in October 1973, then he told the country on national television.
42:51 Speaker 20 In this technological age, image becomes dominant. Appearance supersedes reality. An appearance of wrongdoing, whether true and fa- or false in fact, is damaging to any man. But more important, it is fatal to a man who must be ready at any moment to step into the presidency.
43:15 Speaker 04 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. The one that concerns the vice presidency is Section 2.
43:32 Speaker 07 Section 2.
43:33 Speaker 04 John Feerick, who helped draft the 25th Amendment, reads it for us.
43:38 Speaker 07 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. And it was used for the first and only time during the period of 1973 and 74, when the Vice President resigned from office, the President Nixon was able to nominate Gerald Ford, the Majority Leader of the House of Representatives, to be the new Vice President, who was confirmed within two months after the nomination.
44:14 Speaker 14 On today, having confirmed the nomination of Gerald R. Ford of the State of Michigan to be Vice President of the United States, the proceedings required by Section 2 of the 25th Amendment to the United States Constitution have been complied with.
44:32 Speaker 04 So Gerald Ford became the Vice President. Then the following year, President Richard Nixon resigned, which meant that, under the 25th Amendment's Section 1, newly confirmed Vice President Ford would now become President Ford. He then nominated his new Vice President, again, under Section 2, Nelson Rockefeller. So within a year, the 25th Amendment was invoked three separate times.
45:00 Speaker 07 We never speculated about that scenario, that's for sure. I mean, we never had anything like that in our history.
45:09 Rund Abdelfatah? 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?
45:27 Speaker 07 I was just thrilled, obviously, like so many of us, because Watergate was terrible. But keep in mind, process involved both houses of Congress, filling a vacancy in the vice presidency. 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, and the House had to be included, every district in the country.
46:00 Speaker 04 This wouldn't be the only time the 25th Amendment would be invoked. Section 3, which allows the president to initiate a power transfer, that was used once by Ronald Reagan, twice by President George W. 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. 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. 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.
46:50 Speaker 04 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. 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. But so far, all that discussion has only been hypothetical.
47:19 Rund Abdelfatah? 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.
47:33 Speaker 07 Amendments.
47:34 Rund Abdelfatah? And this is 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?
47:47 Speaker 07 I do think at the end of the day, we've been through a lot of issues in our country's history. We had the Confederacy and a long time before women could vote, participate, and African-American women, even when other women could vote. And we've been able to move beyond that. The way I see the world, I respect our Constitution. 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. And it makes clear from the start the sovereignty of the people, we the people.
48:30 Speaker 07 And if you want to change the Constitution, it's not easy. But I don't rule out another constitutional amendment, even though it's very hard. And I have the confidence that the American people, whether you understand the Constitution or not, you do understand there's something out there called the Constitution.
48:51 Rund Abdelfatah? It's rare to hear someone speak, hopefully, about any of this, frankly, today. It feels like the popular sentiment is despair, is pessimism. What fuels your hope?
49:09 Speaker 07 We all have an obligation as lawyers to keep hope alive because the rule of law and our Constitution. And it's not easy. But that doesn't mean it can't be done.
49:30 Speaker 07 And that's somebody who gives up hope. And that was just that young lawyer that thought that Congress should do something about the 25th Amendment.
49:41 Rund Abdelfatah? I feel like it's especially, you know, I don't know, powerful, kind of having this conversation with you, sitting here in Fordham, where all of this began. And I think it's kind of beautiful that you're here. Like, it's sort of a...
49:58 Speaker 07 It's awfully nice of you. I mean, I just, it's, you know, when I read the pages in there last night, I wouldn't be able to do that today. And it brought back a lot of memories of people who are all gone, you know? And yet, like myself, I had a belief in America.
50:30 Speaker 04 That's it for this week's show. I'm Ramtin Arablouei.
50:33 Rund Abdelfatah? I'm Ronda Birgatth, and you've been listening to Throughline from NPR.
50:39 Speaker 04 This episode was produced by me...
50:41 Rund Abdelfatah? And me and...
50:43 Speaker 04 Lawrence Wu.
50:44 Speaker 02 Julie Kay. Anya Steinberg. Casey Minor. Kristina Kim.
50:49 Speaker 21 Devin Kadyama.
50:50 Speaker 02 Sarah Wyman.
50:51 Rund Abdelfatah? Irene Noguchi. Voiceover work in this episode was done by Neil Rausch and Zach Forrest.
50:57 Speaker 04 Thank you to Jeanette Oakes, Keondre Starling, Johannes Durkey, Tony Cavan, Nadia Lancy, Edith Chapin, and Colin Campbell.
51:07 Rund Abdelfatah? Fact checking for this episode was done by Kevin Vogel. This episode was mixed by Robert Rodriguez. Music for this episode was composed by Ramtin and his band, Drop Electric, which includes...
51:19 Speaker 21 Navid Marvi. Cho Fujiwara.
51:21 Speaker 00 Anya Mizani.
51:23 Speaker 04 And finally, if you have an idea or like something you've heard on this show, write us at [email protected] .
51:31 Rund Abdelfatah? Thanks for listening.
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