We the People: Succession of Power

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. To access bonus episodes and listen to Throughline sponsor-free, subscribe to Throughline+ via Apple Podcasts or at plus.npr.org/throughline http://plus.npr.org/throughline. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

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• 0:18Speaker 01

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

• 0:23Speaker 02

  Uh huh.

• 0:24Speaker 01

  Or the pockets so that no snail gets into it.

• 0:28Rund Abdelfatah?

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

• 0:36Speaker 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.

• 0:45Speaker 04

  The show was stopped.

• 0:51Speaker 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.

• 1:04Rund Abdelfatah?

  When the broadcast came back on air, a man appeared on screen looking pale and in shock. He says...

• 1:11Speaker 05

  President Kennedy and Governor John Colley have been cut down by assassins' bullets in downtown Dallas.

• 1:16Speaker 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.

• 1:24Speaker 05

  Mr. Kennedy was struck in the head.

• 1:26Speaker 06

  The first reports say that President Kennedy has been seriously wounded by this shooting.

• 1:32Speaker 05

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

• 1:39Rund Abdelfatah?

  For about an hour, there was no official announcement of whether the President or Vice President were dead or alive.

• 1:57Speaker 04

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

• 2:05Speaker 07

  My name is John Feerick. I'm a professor at Fordham Law School.

• 2:11Rund Abdelfatah?

  Today, John is a professor at the law school he graduated from. He's 89 years old.

• 2:16Speaker 07

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

• 2:23Speaker 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.

• 2:44Speaker 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?

• 2:58Speaker 04

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

• 3:04Speaker 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.

• 3:15Speaker 04

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

• 3:25Speaker 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."

• 3:58Speaker 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?

• 4:41Speaker 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.

• 4:57Speaker 07

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

• 5:01Rund Abdelfatah?

  So he started mailing out copies. He sent them everywhere, to current and former politicians. He even sent one to the White House.

• 5:12Speaker 07

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

• 5:17Rund Abdelfatah?

  It went like this.

• 5:18Speaker 07

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

• 5:25Rund 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.

• 5:36Speaker 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.

• 5:56Rund Abdelfatah?

  Then he hears from Richard Nixon.

• 5:58Speaker 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.

• 6:07Rund Abdelfatah?

  You aimed high.

• 6:10Speaker 07

  Well, I didn't know better.

• 6:13Rund 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.

• 6:27Speaker 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.

• 7:02Rund Abdelfatah?

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

• 7:10Speaker 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.

• 7:35Speaker 10

  It's official now. The president is dead.

• 7:39Speaker 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.

• 7:48Speaker 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.

• 8:14Speaker 04

  I'm Ramtin Arablouei.

• 8:16Rund Abdelfatah?

  And I'm Rand Abdelfatah. You're listening to Throughline from NPR.

• 8:22Speaker 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.

• 8:43Speaker 11

  Hi. This is Mike from Brno in the Czech Republic. And you're listening to Throughline.

• 8:52Speaker 11

  A class act, this program.

• 9:02Speaker 12

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• 10:24Rund Abdelfatah?

  Part one, the question of succession.

• 10:30Speaker 04

  Ready?

• 10:30Rund Abdelfatah?

  All right, I'm recording.

• 10:32Speaker 04

  All right.

• 10:35Rund Abdelfatah?

  I'm ready.

• 10:35Speaker 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.

• 10:53Rund Abdelfatah?

  It was a cold, cold day.

• 10:55Speaker 04

  The worst.

• 10:56Rund Abdelfatah?

  And I remember I took the subway and I met Lawrence in the lobby.

• 11:01Speaker 04

  Okay.

• 11:02Rund Abdelfatah?

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

• 11:06Speaker 04

  As you have to do.

• 11:07Rund 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.

• 11:22Speaker 02

  Hi, how are you, Karen? Yes. Hi, good to meet you. I'm Paul Metzger.

• 11:27Rund Abdelfatah?

  Run.

• 11:27Speaker 02

  Good to meet you.

• 11:28Rund 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.

• 11:39Speaker 04

  Okay.

• 11:40Rund Abdelfatah?

  Hello. Hi.

• 11:44Rund 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.

• 12:12Speaker 04

  Oh.

• 12:13Rund Abdelfatah?

  And then, you know, he had like all these law books, you know, along the wall.

• 12:18Speaker 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?

• 12:26Rund Abdelfatah?

  I think it had been a while.

• 12:27Speaker 04

  Huh.

• 12:27Rund 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.

• 12:46Speaker 04

  John Feerick was born in 1936 in New York. His parents had arrived in the US not long before.

• 12:53Speaker 07

  My parents were immigrants and no formal education. I was the first born.

• 12:59Speaker 04

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

• 13:04Speaker 07

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

• 13:12Speaker 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.

• 13:22Speaker 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.

• 13:34Speaker 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.

• 13:58Speaker 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.

• 14:09Speaker 04

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

• 14:14Speaker 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.

• 14:23Speaker 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.

• 14:35Speaker 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.

• 14:45Speaker 04

  Inability, as in the president is unable to serve?

• 14:49Rund Abdelfatah?

  What would that mean? A medical issue?

• 14:52Speaker 07

  Yeah, he had a medical issue. And as soon as he was elected, he resigned.

• 14:58Speaker 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.

• 15:11Speaker 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.

• 15:19Speaker 04

  A standoff. But Fordham had a student court, I'm not joking here, that would decide these kinds of matters.

• 15:28Speaker 07

  And they sustained the position I had taken, that the student Constitution provided for succession.

• 15:36Rund 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.

• 15:44Speaker 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.

• 16:02Speaker 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.

• 16:17Speaker 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.

• 16:32Speaker 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.

• 16:47Speaker 04

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

• 16:53Speaker 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.

• 17:08Speaker 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.

• 17:49Speaker 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.

• 18:21Speaker 07

  I saw that there was a problem of inability.

• 18:24Speaker 04

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

• 18:29Speaker 07

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

• 18:37Speaker 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.

• 18:48Speaker 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.

• 19:04Rund Abdelfatah?

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

• 19:10Speaker 07

  Wilder Wilson, James Garfield.

• 19:14Speaker 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.

• 19:57Speaker 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

• 20:40Speaker 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.

• 21:24Speaker 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.

• 21:46Speaker 07

  I was shocked by that.

• 21:48Speaker 04

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

• 21:57Speaker 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.

• 22:07Speaker 04

  His October 1963 article in Fordham Law Review.

• 22:11Speaker 07

  It was called "The Problem of President's Inability: Will Congress Ever Solve It?"

• 22:15Speaker 04

  "The Problem of Presidential Inability: Will Congress Ever Solve It?"

• 22:20Speaker 07

  Question mark.

• 22:21Speaker 04

  Question mark.

• 22:25Rund 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?

• 22:57Speaker 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.

• 23:09Rund 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?

• 23:17Speaker 07

  Well, I guess, one way to look at it, uh, I go back to the Constitutional Convention.

• 23:24Speaker 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.

• 23:46Speaker 07

  At some point in the convention, John Dickinson of Delaware, as I recall, says, "What is inability?"

• 23:56Rund Abdelfatah?

  Yeah.

• 23:56Speaker 07

  He says that who determines what is an inability?

• 24:01Rund Abdelfatah?

  And he's asking this in like 1787.

• 24:03Speaker 07

  1787.

• 24:04Rund Abdelfatah?

  Yeah.

• 24:05Speaker 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.

• 24:17Rund 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?

• 24:26Speaker 07

  The article, a time of potential nuclear war. And if something happened to a president who is still alive.

• 24:35Speaker 04

  After an assassination attempt or illness, for example.

• 24:39Speaker 07

  The consequences for the country would have been enormous. It would have been a crisis.

• 24:50Speaker 14

  A flash from Dallas.

• 24:52Speaker 04

  Coming up, a president is shot and John goes to Washington.

• 25:03Speaker 15

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

• 25:11Speaker 00

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• 25:29Speaker 12

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• 26:31Speaker 09

  Part Two. The Road to an Amendment.

• 26:35Speaker 10

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

• 26:39Speaker 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.

• 26:49Speaker 04

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

• 26:58Speaker 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.

• 27:10Speaker 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.

• 27:28Speaker 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.

• 27:52Speaker 04

  A New York Times journalist who'd read John's article about this issue.

• 27:57Speaker 07

  publishes an article and makes reference to my article.

• 28:02Speaker 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?

• 28:24Speaker 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.

• 28:33Speaker 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.

• 28:45Rund Abdelfatah?

  Because suddenly, it looked like you almost predicted.

• 28:49Speaker 07

  Yeah, my life changed. Because somehow I started to get requests for the article.

• 28:56Speaker 04

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

• 29:04Speaker 07

  I realized that elective politics was not for me, but law reform and communicating through writings, through talks, would be who I am.

• 29:23Speaker 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.

• 29:42Speaker 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.

• 29:56Speaker 04

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

• 30:01Speaker 07

  And the first document to read is my article.

• 30:04Speaker 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.

• 30:17Rund Abdelfatah?

  You had done all the work already, basically.

• 30:19Speaker 07

  Yeah, it was complete. The article was out there.

• 30:22Speaker 08

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

• 30:34Speaker 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.

• 30:50Speaker 07

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

• 30:57Speaker 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.

• 31:08Speaker 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.

• 31:18Rund Abdelfatah?

  It'll look like a coup.

• 31:19Speaker 07

  It's like a coup.

• 31:21Speaker 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?

• 31:30Speaker 07

  So all of that, we sort of worked through. And at the end of the day, put out the recommendations.

• 31:40Speaker 04

  The biggest one being, we need a constitutional amendment.

• 31:46Speaker 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.

• 32:20Speaker 07

  Several of us on the conference also were invited to testify in subsequent days.

• 32:27Speaker 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.

• 32:45Speaker 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.

• 33:00Speaker 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.

• 33:10Speaker 17

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

• 33:18Speaker 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.

• 33:38Speaker 04

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

• 33:47Rund Abdelfatah?

  This is top priority at this point.

• 33:50Speaker 07

  Top priority. It was magnificent.

• 33:52Speaker 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.

• 34:03Rund 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?

• 34:18Speaker 07

  Well, in many ways, I had several roles.

• 34:21Speaker 04

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

• 34:30Speaker 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.

• 34:42Speaker 04

  Second, educating lawyers and the public about the amendments.

• 34:46Speaker 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.

• 35:03Rund Abdelfatah?

  You're educating them. So you were educated. Yeah, you were really like shepherding it, it sounds like.

• 35:10Speaker 07

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

• 35:14Rund 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.

• 35:33Speaker 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.

• 35:47Speaker 04

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

• 35:57Speaker 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.

• 36:06Speaker 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.

• 36:41Speaker 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.

• 36:54Speaker 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.

• 37:33Speaker 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.

• 37:51Speaker 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.

• 38:05Speaker 18

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

• 38:14Speaker 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.

• 38:39Rund 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.

• 38:57Speaker 07

  We start with the principle that...

• 39:01Speaker 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.

• 39:47Speaker 04

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

• 39:59Speaker 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.

• 40:16Speaker 00

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• 41:38Speaker 09

  Part Three. The Twenty-Fifth.

• 41:43Speaker 04

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

• 41:51Speaker 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.

• 42:05Speaker 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.

• 42:30Speaker 10

  The charges that have been made against him, and which he has denied publicly, he has denied to me privately on three occasions.

• 42:40Speaker 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.

• 42:51Speaker 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.

• 43:15Speaker 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.

• 43:32Speaker 07

  Section 2.

• 43:33Speaker 04

  John Feerick, who helped draft the 25th Amendment, reads it for us.

• 43:38Speaker 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.

• 44:14Speaker 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.

• 44:32Speaker 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.

• 45:00Speaker 07

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

• 45:09Rund 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?

• 45:27Speaker 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.

• 46:00Speaker 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.

• 46:50Speaker 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.

• 47:19Rund 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.

• 47:33Speaker 07

  Amendments.

• 47:34Rund 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?

• 47:47Speaker 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.

• 48:30Speaker 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.

• 48:51Rund 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?

• 49:09Speaker 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.

• 49:30Speaker 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.

• 49:41Rund 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...

• 49:58Speaker 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.

• 50:30Speaker 04

  That's it for this week's show. I'm Ramtin Arablouei.

• 50:33Rund Abdelfatah?

  I'm Ronda Birgatth, and you've been listening to Throughline from NPR.

• 50:39Speaker 04

  This episode was produced by me...

• 50:41Rund Abdelfatah?

  And me and...

• 50:43Speaker 04

  Lawrence Wu.

• 50:44Speaker 02

  Julie Kay. Anya Steinberg. Casey Minor. Kristina Kim.

• 50:49Speaker 21

  Devin Kadyama.

• 50:50Speaker 02

  Sarah Wyman.

• 50:51Rund Abdelfatah?

  Irene Noguchi. Voiceover work in this episode was done by Neil Rausch and Zach Forrest.

• 50:57Speaker 04

  Thank you to Jeanette Oakes, Keondre Starling, Johannes Durkey, Tony Cavan, Nadia Lancy, Edith Chapin, and Colin Campbell.

• 51:07Rund 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...

• 51:19Speaker 21

  Navid Marvi. Cho Fujiwara.

• 51:21Speaker 00

  Anya Mizani.

• 51:23Speaker 04

  And finally, if you have an idea or like something you've heard on this show, write us at [email protected].

• 51:31Rund Abdelfatah?

  Thanks for listening.

• 51:46Speaker 00

  Stay tuned for the following announcements and messages from our sponsors.