Continuity in the Presidency

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In 1964, at the beginning of former Fordham Law Dean John Feerick’s legal career, the American Bar Association enlisted him to help develop a solution to the gaps in the Constitution’s procedures for handling presidential succession. Three years later, the Constitution had an amendment to address those gaps, and, more than 50 years later, the ABA and Feerick continued their collaboration with a symposium at Fordham Law School on the 25th Amendment.

During the September 27 symposium, former Indiana Senator Birch Bayh, one of the amendment’s principal architects, paid them a tribute through a message delivered by his longtime legislative aide, Jason Berman. Senator Bayh’s message: “There would be no 25th Amendment without John Feerick and the ABA.”

Berman offered Bayh’s praise at the symposium after Feerick shared his experiences as an eager young lawyer who balanced three important responsibilities: an obsession with presidential succession, a day job at a small New York City firm, and a role at home as a new husband. Prior to the amendment’s ratification in 1967, Feerick wrote three instrumental articles in the Fordham Law Review between 1963 and 1965 that helped inform and promote the amendment’s drafting and ratification. He also served on the ABA’s special conference on presidential inability, as chair of the American Bar Association’s Young Lawyers Committee and personally assisted lawmakers and testified before Congress.

“It is rare for one individual and one law school to be so closely tied to a constitutional amendment,” Fordham Law Dean Matthew Diller said in his welcoming remarks. “The 25th Amendment is inextricably linked to Fordham Law, and this connection is due to John.”

The symposium, “Continuity in the Presidency: Gaps and Solutions—Building on the Legacy of the 25th Amendment,” featured recollections from Feerick and other key participants who helped draft and organize support for the amendment, insights from legal scholars of presidential and vice-presidential succession, and recommendations for further reform from students in Feerick’s second Presidential Succession Clinic. The 25th Amendment provides procedures for declaring the president unable and filling vice presidential vacancies. It also resolves ambiguities in the Constitution’s original succession provision.

During the day’s second panel, Feerick recounted how two years out of law school he published his article “The Problem of Presidential Inability—Will Congress Ever Solve It?” in the October 1963 issue of the Fordham Law Review. He printed out and circulated copies of his article, all the while expecting it would end up on a library shelf “never to be read again.”

President John F. Kennedy’s assassination one month after the article was published thrust Feerick’s work into the national limelight. After he helped guide the 25th Amendment’s drafting, the ABA tapped Feerick to chair its Young Lawyers Committee, whose members delivered an “overwhelming” effort, Feerick noted, in persuading key federal and state lawmakers that they needed to act swiftly on lingering presidential succession questions.

“We didn’t need social media,” said Feerick of the Young Lawyers Committee. “We just needed a telephone—or mail. In states all over the country, young lawyers took charge and communicated with their congressmen and their state legislatures.”

During their presentations, Berman and Lowell Beck, the former assistant director of the ABA’s Washington office, emphasized that the march to ratification was a struggle. The push for a constitutional amendment had all but ended in the summer of 1963 when Bayh became chair of the Subcommittee for Constitutional Amendments, Beck said.

The circumstances surrounding a possible presidential succession amendment changed dramatically due to Kennedy’s assassination, a 14-month vacancy in the vice presidency following Kennedy’s death, and a shared sense in the nuclear age that the existing machinery around succession was dated and inadequate, Berman said. Given the platform, Bayh used his political and legislative skills to turn a legislative possibility into a legislative priority. Since no money was allocated for the subcommittee, Bayh repurposed an abandoned bathroom in the Senate office building as an office.

“The majesty of the Constitution, the gravity of amending it, took place in a converted men’s room with three desks and no windows,” Berman said, drawing laughs from the audience.

The ABA’s support was crucial to ratifying the amendment, Berman added. Initially, the ABA had endorsed an amendment that would authorize Congress to enact a law. Bayh believed, however, that a constitutional amendment needed to spell out remedies to perceived deficiencies.

Beck soon recruited the then-26-year-old Feerick after reading his law review article, and the rest is history.

“I like to say that I was the guy who found John Feerick,” Beck said. “I’ve been so proud to have known him over the years, and all he’s accomplished has been a wonderful thing.”

Student Recommendations

The day’s opening panel featured recommendations for further reform to the presidential succession system from 10 Fordham Law students in Feerick’s second Presidential Succession Clinic, which met over the last academic year and whose report the Fordham Law Review is publishing in its December issue.

  • Tim Deal ’17 and Javed Yunus ’17 discussed the clinic’s recommendation for Congress to convene a Joint Select Committee if it ever needed to decide a dispute over the president’s capacity under Section 4 of the 25th Amendment.
  • Alison Park ’17 and Bronwyn Roantree ’17 outlined two steps for the White House to take to prepare for presidential inabilities and uses of the the amendment: the addition of a mental health professional to the White House Medical Unit and the creation of a “prospective declaration of inability” by the president to allow for quick invocations of the the amendment during emergencies.
  • Naomi Babu ’17 and Marcella Jayne ’18 discussed the clinic’s proposed reforms to the presidential line of succession, including removing legislators and reordering Cabinet members’ positions based on their departments’ areas of expertise.
  • Edgar Mendoza ’17 focused on how Congress could pass legislation for declaring the vice president unable and a simultaneous “dual inability” of the president and vice president.
  • Gareth Horell ’18 and Nikole Devaris Morgulis ’17 discussed the clinic’s recommendation of a commission to create non-binding guidelines for presidential candidates’ health disclosures that would create expectations to encourage greater transparency..
  • Ryan Surujnath ’17 discussed the political parties’ rules for filling vacancies in their nominations for president, outlining the clinic’s proposal to have a special committee propose replacement in the weeks following the convention and to make the vice presidential nominee the default successor to the nomination in the final weeks of the campaign.

Fordham Law Adjunct Professor John Rogan ’14, who co-taught the clinic with Feerick, moderated the students’ panel, which featured responses from Washington, D.C. attorney Roy Brownell III, St. Louis University Law Professor Joel K. Goldstein, and Brown University International Relations Professor Rose McDermott.

Video and articles from the symposium will be available on The Maloney Library’s 25th Amendment Archive, which also features Feerick’s articles and correspondence on the amendment as well as the first Presidential Succession Clinic’s report.

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