John Feerick and John Rogan were quoted in a Psychology Today article about the 25th Amendment.
“The 25th Amendment is the safety net of the American Constitution,” says John Feerick. “I hope we never have to use it.” Currently a professor at Fordham Law School, formerly its long-serving dean, Feerick was barely out of Fordham’s law school himself when he was called on to compose the amendment, thanks to a long-standing interest in presidential succession. Over the years, he has taught it, served on public and private commissions relating to it, and organized legal clinics to reflect evolving thinking on the application of it; after all, a document written nearly 250 years ago is the ongoing pillar of our government.
To mark the 50th anniversary of the amendment, Feerick, along with adjunct professor John Rogan, convened a year-long law clinic on it. After studying the succession system and interviewing experts, participants produced a 108-page document, Recommendations for Improving the Presidential Succession System, published in a recent issue of the Fordham Law Review. Notably, the group proposed that the White House add a psychiatrist to its medical unit, “given that some presidents have suffered psychological ailments.”
“The White House physician should play a central role in any determination of inability,” says Rogan—not necessarily in making the determination but in advising the people (the vice president, the cabinet, or the congressional “body”) designated by the 25th Amendment to make the decision. “They have a level of accountability,” Rogan points out. “The vice president is elected. The members of the cabinet are confirmed by the Senate. That isn’t necessarily the case with physicians.”
Neither the amendment nor the new recommendations define inability—deliberately. The legislative history of the amendment contains discussion of “physical impairments that prevented the president from declaring himself unable and psychological impairments that prevented the president from making any rational decision, particularly the decision to stand aside.” A president’s inability “to reliably communicate with the White House could qualify,” say the Recommendations. “There’s no question that changes in society have increased the need for a capable president,” Rogan says, “but ultimately, it’s up to Congress and the cabinet to determine how to apply [the amendment].”
The Fordham paper also strongly recommends that the White House physician in any administration prospectively draw up a set of circumstances that would constitute inability—”responsible and creative contingency planning.” Aside from allowing for evolving definitions of incapacity, it would take some of the uncertainty out of real crises.
Giving the vice president authority to initiate a transfer of power in certain predetermined circumstances would likely have prevented the chaos following the 1981 assassination attempt on Ronald Reagan. After the president collapsed into unconsciousness in the emergency room, explains Northeastern’s Gilbert, Secretary of State Alexander Haig called a press conference in which, “with his hands shaking, he declared, ‘Gentlemen, I am in control here.’ He was not next in line, and It looked like a coup d’état,” says Gilbert. “It ended Haig’s career.” As the Fordham document states, “Prospective declarations of inability are needed for situations where presidential action must be taken immediately, but the president is unable and the Section 4 decision-makers are not easily reachable to participate in declaring the president unable.”
Fordham is sending the report to officers of the executive branch and members of Congress, including those on the Senate Rules Committee and the House Judiciary Committee, which are responsible for matters relating to presidential succession. The aim is to correct the “remaining flaws and gaps” in the 25th Amendment. Admittedly, having to invoke Section 4 “would be a really trying experience for the country to go through,” says Rogan. Not least because “such a serious issue raised about the president’s fitness could expose the country’s vulnerability.” It would, however, also be a mark of resilience.”
