An irony of the 25th Amendment’s history is that on the three occasions its “Acting President provisions” (Section 3) have been invoked, it’s been related to medical procedures involving the Commander-in-chief’s rectum; and a fourth was nearly invoked in 1978. But yet, in the instance in which constitutional scholars unanimously agree it should have been invoked? It wasn’t.
December 1978: President Carter Considers Invocation
On 22 December 1978, White House counsel Bob Lipshutz prepared two documents which, had they been executed, would’ve represented the first invocation of the provisions of the 25th Amendment’s third section.
The circumstances surrounded President Jimmy Carter, who was being advised to undergo a hemorrhoidectomy. Had Carter chosen to invoke “25,” the text of one of the following letters would’ve been tailored to suit the situation and sent to the Speaker of the House and the President Pro Tempore of the Senate as required under Section 3:
“Pursuant to medical advice, I, Jimmy Carter, President of the United States, on this date will undergo surgery in the nature of a hemorrhoidectomy. I am advised that I will be administered an anesthetic which will incapacitate me for a period of approximately _____ hours.
Therefore, in accordance with the provisions of Amendment XXV of the Constitution, section 3, I hereby declare that, commencing at _______ (time) today I will be unable to discharge the powers and duties of my office, and therefore, the Vice President shall discharge such powers and duties as Acting President commencing at such time.
Upon recovering my ability to discharge the powers and duties of this office, I will sign the appropriate declaration, transmit it to you, and thereby reassume the powers and duties of the office. My medical advice is that this will be approximately _____ (time) today.”
“Pursuant to medical advice, I, Jimmy Carter, President of the United States, on this date will undergo surgery in the form of a hemorrhoidectomy. I am advised that I will be administered an anesthetic which will incapacitate me for a period of approximately _____ hours.
Therefore, in accordance with the provisions of Amendment XXV of the Constitution, section 3, I hereby declare that, commencing at _____:00, ___.M. today I am unable to discharge the powers and duties of my office, and therefore the Vice President shall discharge such powers and duties as Acting President commencing at such time.
Upon recovering my ability to discharge the powers and duties of this office I will sign the appropriate declaration, transmit it to you, and thereby reassume the powers and duties of the office. My medical advice is that this will be approximately _____ hour(s) after _____:00 ___.M. today.
This is the 23rd day of December, 1978.”
In either case, the letter that would have been transmitted by Carter “reassuming” the powers and duties of the presidency would’ve been worded the same; the only difference being where the date and timewould have been denoted in the letter.
Ultimately however, Carter did not undergo surgery. Doctors treated the President with Demerol, which reportedly did cause drowsiness but not to a point where constitutional incapacity was considered. A few days later Carter’s symptoms were alleviated, and the invocation of Section 3 didn’t occur.
March 30, 1981: The Section 4 Invocation That Wasn’t
At 2:27 p.m. on March 30, 1981, President Ronald Wilson Reagan and three others (White House Press Secretary James Brady, Secret Service Agent Timothy McCarthy, and Washington D.C. police officer Thomas Delahanty) were shot and seriously wounded by John W. Hinckley, Jr. outside the Washington Hilton Hotel in Washington, D.C. During the attempt, Hinckley would fire six shots within 1.7 seconds, missing the President with all six; but the sixth and final bullet ricocheted off the side of the armor-plated presidential limousine and struck the President under the left underarm. The bullet grazed a rib and lodged in his lung, causing it to partially collapse and stopping less than one inch from his heart. Taken to George Washington University Hospital at the instruction of Special Service agent in charge Jerry Parr, the limousine arrived at the hospital four minutes after the shooting.
Upon President Reagan’s admission sufficient information was discovered about his wound that surgery would be necessary. Benjamin L. Aaron, chief of thoracic surgery at “GW,” decided to perform a thoracotomy, during which the bullet would be removed. The surgery went well, with his physicians predicting the President would be able to leave the hospital in two weeks and return to work in the Oval Office within a month.
The events of March 30, 1981 were tailor-made for an invocation of the provisions of either Section 3 or Section 4 of the 25th Amendment. White House Counsel Fred Fielding prepared for both eventualities, expecting the 25th to be invoked; and within minutes of the shooting Cabinet members began gathering in the White House Situation Room. Upon learning that President Reagan was undergoing surgery, Secretary of State Haig incorrectly declared that with Vice President Bush flying somewhere over Texas, “the helm is right here; and that means right in this chair for now, constitutionally, until the Vice President gets here.” Unfortunately for Haig, he was incorrect; in fact he was fourth in the line of succession rather than second, behind Vice President Bush, Speaker of the House Thomas Phillip “Tip” O’Neill, and President Pro Tempore of the Senate J. Strom Thurmond. Haig would proceed to repeat the error at a hastily assembled press briefing:
Constitutionally, gentlemen, you have the President, the Vice President, and the Secretary of State, in that order, and should the President decide he wants to transfer the helm to the Vice President, he will do so. As of now, I am in control here, in the White House, pending the return of the Vice President and in close touch with him. If something came up, I would check with him, of course.
Upon returning to the Situation Room from the briefing, an argument among the Cabinet members in attendance took place about Haig’s remarks. Reagan’s operation was concluded at 6:20 that evening, regaining consciousness at around 7:30 – roughly a half hour after the Vice President arrived at the White House. Despite being advised by both White House Counsel Fred Fielding and Attorney General William French Smith to do so, Vice President Bush balked at the idea of joining the Cabinet in invoking Section 4 of the 25th Amendment, feeling doing so would simply be a legally sanctioned coup d’etat.
Rather than invoke Section 4, within an hour Bush would appear on television and essentially lie, stating that “…the American government is functioning fully and effectively.” He, the Cabinet and the White House staff instead engaged in a cover-up regarding the President’s condition, leading the media to believe that the President was fully capable of fulfilling his constitutional obligations – even going so far as to have him sign a piece of legislation in the morning after his shooting.
President Reagan, meanwhile, would be hospitalized for thirteen days, would not enter the Oval Office until April 25, would not chair a Cabinet meeting for nearly a month, would not leave Washington D.C. for nearly 50 days, and wouldn’t hold a press conference for nearly three months. The President’s schedule during this time was carefully managed, working just two hours a day in the White House residence at first. One of Reagan’s physicians would later state he believed the President’s recovery wasn’t complete until late October, 1981, a full seven months after the shooting.
The media and public backlash about the decision not to invoke the 25th Amendment was more substantial than has been anticipated, both in the immediate aftermath of the assassination attempt and later, once the situation clarified and more details, both of the President’s condition and Vice President Bush’s refusal to invoke the amendment, were known. Cognizant of this misstep, four years later the Reagan White House would take White House Counsel Fred Fielding’s advice and invoke Section 3 of the amendment; but even they, they did it in a way that left confusion in its wake.
The 25th Amendment was in part quite literally drafted for the type of scenario which unfolded on March 30, 1981. With the President of the United States seriously wounded and being prepared for surgery, one of two events should have taken place. Either:
- President Reagan should have been capable of signing a letter temporarily transferring the powers and duties of his office and installing Vice President Bush as Acting President, as mandated under Section 3 of the amendment, prior to undergoing surgery; a document which frankly should accompany each President at all times, pre-signed, and carried by the military officer responsible for the President’s Emergency Satchel (a/k/a the “nuclear football”); or
- Immediately upon returning to Washington, Vice President Bush and the Cabinet members assembled in the White House Situation Room should have signed a letter declaring the President temporarily incapable of discharging the powers and duties of his office, as mandated under Section 4 of the amendment.
In either case, George Herbert Walker Bush should have become Acting President of the United States on March 30, 1981; and he probably should have acted as President until at least May 1st of that year. While perhaps admirable that the Vice President didn’t want to be seen as usurping the President at a time when the President was laid up, taking action under the 25th Amendment would have been universally seen as the proper thing to do under the circumstances. In hindsight, his refusal to take that action was nothing short of unconscionable.