Adjunct Professor John Rogan wrote an op-ed for the Lawfare Blog about the 25th Amendment and the Presidential Succession Clinic at Fordham Law.
After John Hinckley, Jr. shot President Ronald Reagan and three others outside the Washington Hilton Hotel in 1981, confusion reigned. Reagan was rushed to emergency surgery and Vice President George H.W. Bush was difficult to reach aboard Air Force Two. A Soviet nuclear submarine was moving closer to the United States, but senior officials in the Situation Room quibbled over who was in command of the military. Secretary of State Alexander Haig announced to the press that he was “in charge,” even though he was not next in the line of succession. Then-White House counsel Fred Fielding recounts that “eyes glazed over” in the Situation Room when he mentioned the 25th Amendment.
The amendment had filled gaping holes in the legal framework for presidential succession and inability when ratified in 1967. But the White House had not created detailed plans for its use by the time Hinckley fired on President Reagan in March 1981.
The chaos following the assassination attempt was a turning point for the 25th Amendment. In the following days, when Reagan was conscious and recovering, the Justice Department’s Office of Legal Counsel completed a memo on the 25th Amendment. By the middle of the next year, the White House counsel’s office had compiled a nearly 200-page binder with plans for invoking the amendment. The document was updated by following administrations until at least the most recent Bush administration. (One version from the Clinton administration is available on Fordham Law’s 25th Amendment Archive.)
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Fordham Law’s Presidential Succession Clinic, which I co-taught, called on Congress in a Fordham Law Review report to create clear legal procedures for vice-presidential inability that mirror those in the 25th Amendment. Under the clinic’s proposal, the vice president could voluntarily declare his inability or the next person in the line of succession after the vice president—the speaker of the house, absent a vacancy in that office—could act with the Cabinet to declare the vice president unable.
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The White House Medical Unit, which also cares for the president’s family and staff, consults with outside mental-health professionals where appropriate, but whether those consultations have ever been for the president is not part of the public record. The unit should consider adding a full-time mental-health professional to its ranks, as the Fordham Clinic recommended.
The clinic pointed to several presidents who may have experienced serious mental-health issues.