Professor John Feerick’s article on the 25th Amendment was cited in an Atlantic article.
In proposing the Twenty-fifth Amendment, Bayh worked closely with John D. Feerick, who went on to serve as dean of Fordham Law School and is now a professor there. Feerick worked with Bayh’s subcommittee to draft the language that eventually became the Twenty-fifth Amendment. He recounted the arduous process in a 1995 law journal article. As Feerick writes, the question of presidential succession was first addressed at the Constitution Convention in 1787. And the initial language about who would have executive authority if there were no president read as follows:
[I]n case of his [the President’s]removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the Vice President shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed.
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In a 2011 article, Feerick adds that cabinet officials and scholars between the founding and the passage of the Twenty-fifth Amendment debated who should judge what counts as a presidential disability:
During President James Garfield’s illness in 1881, a number of well-known legal authorities were of the opinion that “inability” in the Succession Clause referred solely to mental incapacity. For example, Professor Theodore W. Dwight of Columbia Law School, one of the leading constitutional authorities of that time, held this view.22 Similarly, former Senator William Eaton of Connecticut stated, “There can be no disability that the President can be conscious of,” and “It must be a disability, as, for example, if he were insane, which is patent to everybody except himself.”
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In drafting the Twenty-fifth Amendment, Feerick and Bayh left open the question of what counts as a presidential disability. As Feerick notes, “The terms ‘unable’ and ‘inability’ are undefined in either Section 3 or 4 of the Amendment, not as the result of an oversight, but rather ‘a judgment that a rigid constitutional definition was undesirable, since cases of inability could take various forms not neatly fitting into such a definition.’”