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Presidential Succession and Delegation
in Case of Disability
[The follow ing m em orandum discusses issues relating to presidential succession and dele gation o f presidential pow er in the event o f a tem porary disability o f the President. It examines the mechanism established by the T w enty-F ifth A m endm ent by w hich the V ice President assumes the pow ers and duties o f the Office o f the President, and the conditions under w hich the President resum es his Office after his disability is ended. It also examines the circum stances in w hich the President may delegate his pow ers to o ther officials, including the V ice President, w hen it is not considered necessary or appropriate to invoke the provisions o f the T w enty-F ifth A m endm ent. It concludes that functions vested in the President by the C onstitution are generally not delegable and must be perform ed by him; how ever, any pow er vested in the President by statute may be delegated to subordinate officers, unless the statute affirm atively prohibits such delegation. Finally, the m em orandum briefly review s the form and m ethod o f delega tion. A n appendix contains a historical sum m ary o f p rio r presidential disabilities and the resulting effect on presidential authority.]
April 3, 1981
M EM ORANDUM FO R T H E ATTO RN EY G E N E R A L
As a result o f the recent assassination attempt on President Reagan, this Office has researched several issues that relate to presidential suc cession and the delegation of presidential power in the event of a temporary disability of the President. This memorandum sets forth our conclusions on the relevant legal issues.
I. Presidential Succession
The Twenty-Fifth Amendment to the U.S. Constitution establishes a mechanism for presidential succession in the event that the President becomes unable to perform his constitutional duties. Succession may take place in tw o ways. First, if the President is able and willing to do so, he may provide for the temporary assumption of the powers and duties of his office by the Vice President by “transmit[ting] to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office.” U.S. Const., Amend. XXV, §3. When the President transmits such a declaration, his powers and duties devolve upon the Vice President as Acting President1 until the Presi-
’There appears to be no requirement that the Vice President resign from his position as Vice President or take the President's oath of office to serve as “ Acting President.” As a general rule, an Continued
dent transmits an additional written declaration stating that he has become able to perform his responsibilities. Second, if the President is unable or unwilling to transmit a declara tion o f his inability to perform his duties, the Vice President will become Acting President 2 if the Vice President and a majority of the “principal officers of the executive departments” transmit to the Presi dent pro tempore of the Senate and the Speaker of the House a written declaration that the President is unable to discharge the powers and duties o f this Office. See U.S. Const., Amend. XXV, §4. The term “principal officers of the executive departments” is intended to mean “the Cabinet,” although the term “Cabinet” has no precise legal defini tion.
If, during the period in which the Vice President is Acting President, pursuant to the provisions of Section 4 of the Twenty-Fifth Amend ment, the President submits to the President pro tempore of the Senate and the Speaker of the House a written declaration that no inability exists, he will resume the powers of his office unless, within four days, the Vice President and a majority of the Cabinet heads transmit an addi tional written declaration stating that the President is unable to dis charge his powers and duties. A t that point, Congress must decide the
official w ho is “acting” in a certain capacity need not vacate the office previously held or take the oath o f office ordinarily taken by th e person whose duties he has temporarily assumed This conclu sion is supported by Presidential Inability and Vacancies in the Office o f Vice President: Hearings Before the Subcomm. on Constitutional Amendments o f the Senate Comm, on the Judiciary, 88th Cong., 2d Sess 215, 232 (1965); Presidential Inability: Hearings Before the House Comm, on the Judiciary, 89th Cong., 1st Sess 87 (1965). See also J. Feerick, The Twenty-Fifth Amendment, 199 (1976) (Feerick) T he rule as to resignation a n d /o r taking the President’s oath appears to be different for those officials further dow n the line of succession See 3 U.S.C. § 19. This memorandum does not address the issues involved in the devolution of powers beyond the position of Vice President. 2 T he Vice President will evidently continue to exercise the duties of Vice President while he serves as Acting President. The V ice President would, however, lose his title as President of the Senate. See 111 Cong. Rec. 3270 (1965) (Sen. Saltonstall); Feerick at 199 3 See S. Rep. No. 66, 89th Cong., 1st Sess. 2 (1966) We believe that the “ principal officers of the executive departm ents,” for purposes of the Twenty-Fifth Amendment, include the Secretary of State, Secretary o f Treasury, Secretary o f Defense, A ttorney General, Secretary of the Interior, Secretary of Agriculture, Secretary o f Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary o f Housing and Urban Development, Secretary of Transportation, Secretary o f Energy, and Secretary o f Education. That conclusion is supported by the legislative history See 111 Cong. Rec. 7938 (1965) (Rep. Waggoner); id. at 7941 (Rep Poff); id. at 7944-45 (Rep. Whitener); id. at 7953, 7954 (Rep. Gilbert). See also Feerick at 202-03; 5 U S.C. § 101. As a practical matter, and in order to avoid any doubt regarding the sufficiency o f any given declaration, it would be desirable to obtain the assent o f a sufficient number of officials to satisfy any definition o f the term “ principal officers of the executive departments.” T here is some indication that acting heads o f departments may participate in the presidential disability determination. Although th e legislative history is conflicting, the House Judiciary Commit tee's report supports this conclusion, see H R. Rep No. 203, 89th Cong., 1st Sess. 3 (1965), as do the Senate debates, see 111 Cong. Rec. 15,380 (1965) (Sen. Kennedy); id. at 15,583 (1965) (Sen. Javits); and a leading com m entator on the Amendment reaches the same conclusion. See Feenck at 203. Contra, 111 Cong Rec. 3284 (1965) (Rep. Hart). The contrary view proceeds on the assumption that such a decision should be made only by persons whom the President personally selected for his Cabinet. Such persons are presumably intimately familiar with the President and are of relatively equal status with the other decisionmakers.
Congress, no act even o f the President himself, can, by constitutional possibility, authorize or create any military officer not subordinate to the President. So he appoints and removes ambassadors and other officers o f the United States, in the cases and with the qualifications indicated by the Constitution. So he approves or disapproves of bills which have passed both Houses of Congress: that is a personal act of the President, like the vote o f a Senator or a Representa tive in Congress, not capable of performance by a Head of Department or any other person. A study prepared by this Office in the 1950s reaches the same conclusions. This study and our research suggest that the following are nondelegable functions o f the President:
- The power to nominate and appoint the officers of the United States to the extent provided in Article II, § 2, clause 2 o f the Constitution.
- The power to approve or return legislation pursuant to Article I, § 7, clauses 2 and 3, and the power to call Congress into special session or to adjourn it according to Article II, § 3.
- The power to make treaties by and with the advice and consent o f the Senate. U.S. Const., Art. II, § 2, cl. 2. It should be noted, however, that the power to negotiate treaties and the power to enter into executive agree ments may be delegated. See 7 Op. A tt’y Gen., supra, at
- The power to grant pardons. U.S. Const. Art. II, §2, cl. 1.
- The power to remove purely executive presidential ap pointees. This power is vested in the President as an incident o f his appointment power. Myers v. United States, 272 U.S. at 119.
- T he power to issue executive orders. Only the President can issue formal executive orders and proclamations. He can, however, delegate the power to issue many orders which cover substantially the same subject matter as executive orders and proclamations as long as they are not so named.
- T he powers of the President as Commander-in-Chief of the Army and Navy. U.S. Const., Art. II, § 2, cl. 1. In view of Article I, § 8, clauses 12 and 13, which state that Congress shall have the power to raise and support
the Army and to provide and maintain a Navy, many of the President’s powers as Commander-in-Chief are statutory in part. To conclude that the President may not delegate his ultimate constitutional responsibilities as Commander-in-Chief is not to suggest that he is the only officer of the government who may make military decisions in time of emergency, when immediate re sponse may be necessary. The President may make formal or informal arrangements with his civilian and military subordinates, in order to ensure that the chain of command will function swiftly and effectively in time of crisis. O f course, every military officer must be sub ordinate to the President.
B. Statutory Limitations on the President’s Power to Delegate His Functions
The foregoing discussion sets forth the general rule that the President may not delegate inherent powers that are conferred on him by the Constitution. On the other hand, he may generally delegate powers that have been conferred on him by Congress. Congress has so provided in 3 U.S.C. § 301, which states: The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any func tion which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President o f his responsibility in office for the acts of any such head or other official designated by him to perform such func tions. Such designation and authorization shall be in w rit ing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part. Congress has further provided, in 3 U.S.C. § 302, that: The authority conferred by this chapter shall apply to any function vested in the President by law if such law
A ct may be delegated to, or exercised by, any official of any department or agency the head of which is not ap pointed by the President, by and with the advice and consent of the Senate. The President may not delegate or transfer his power, authority, and discretion to overrule or modify any recommendation or decision made by the Secretary [of Commerce], the Secretary of Defense, or the Secretary of State pursuant to the provisions of this Act.
- Statutes Conferring Nondelegable Functions
An unmistakable congressional intent to prohibit delegation may also be inferred from statutes that impose on the President a duty o r power to exercise a nondelegable function. For example, it is commonly thought that only the President may issue an executive order o r procla mation. Statutes that authorize the President to take an action, but require him to act by way of executive order or proclamation, can therefore be read as precluding delegation. An example is found in 22 U.S.C. § 441(a): Whenever the President... shall find that there exists a state of war between foreign states, and that it is neces sary to promote the security or preserve the peace of the United States or to protect the lives of citizens of the United States, the President shall issue a proclamation naming the states involved; and he shall, from time to time by proclamation, name other states as and when they become involved in the war.
- Statutes Implicitly Prohibiting Delegation
A broad range of statutes confer powers on the President but do not state in terms or in the legislative history whether those powers are delegable. In some instances, the character or importance of the powers in question, or other special circumstances, may constitute a sufficient indication of a legislative intent to prohibit delegation. In the brief time available, we have been unable to reach any firm conclusions regarding particular statutes in this category. In general, it would appear that statutory powers that have been exercised by the President himself on a consistent and longstanding basis are more likely than others to be held nondelegable. An example might be the Presi dent’s statutory power to enter into or terminate trade agreements with certain nations under 19 U.S.C. § 1351.
A second special circumstance that can give rise to an inference of nondelegability occurs when Congress gives authority to an agency but subjects that authority to a requirement of presidential approval. In this circumstance, it can be argued that a delegation o f the President’s approval authority back to the agency would subvert the evident legis lative intent to assure review by someone outside the agency, while a delegation to anyone else would conflict with the congressional intent to centralize primary administrative responsibility in the agency. For an example o f such a statute, see § 12(k) o f the Securities Exchange Act of 1934, 15 U.S.C. § 781(k).
III. Delegable Fumctioms
All remaining functions o f the President may be delegated to subordi nate officers. Many statutes explicitly authorize delegation. See, e.g., 22 U.S.C. § 2381 (delegation o f certain foreign affairs powers). In the absence o f specific authorization, the general delegation statute, 3 U.S.C. §§301, 302, explicitly authorizes delegation except where pre cluded by statute. It is beyond the scope o f this memorandum to describe the full extent o f the presidential powers and responsibilities that may be delegated.6 In general, powers which may be delegated include those o f approval, authorization, and assignment; powers to establish and convene certain administrative commissions, to designate responsible officers, and to make certain factual determinations; powers to direct that certain actions be taken, to fix compensation of officers, to prescribe certain rules and regulations, and to make recommenda tions or reports.
It bears repetition that the President may not delegate his power to delegate his own functions. This is, in our view, a function that is constitutionally vested in the President personally. The President may delegate his powers if he is capable o f a conscious decision to do so. If, how ever, he is incapable o f such a decision, delegation cannot occur. If such a situation continues for a substantial period o f time, it would appear desirable to initiate procedures for presidential succession under the Tw enty-Fifth Amendment.
5 W e emphasize that the above examples are entirely tentative; it may well be that, upon further examination o f the statutes and their legislative histories, this Office would conclude that Congress did not intend to prohibit delegation. 6 F or a description o f the President’s general authonty, see President's Advisory Council on Executive Organization, The Powers and Responsibilities of the President (1970). 7It might be possible for the President to delegate his powers contingent upon the occurrence o f a specified event such as a certification by the President’s personal physician that the President is tem porarily incapable o f making a conscious decision. We would emphasize, however, that this procedure should not be used if its effect is contrary to the intent of the procedures for presidential succession contained in the Twenty-Fifth Amendment.
APPENDIX
P r i o r P r e s i d e n t i a l D i s a b i l i t i e s
This is a summary of prior presidential disabilities and the resulting effect on presidential authority.
- James Madison suffered from a severe fever in the summer of 1813 in the midst o f disputes w ith Congress on how to pay for the W ar of
- I. Brant, James Madison: Commander-in-Chief, 1812-1836, at 184-94 (1961). Daniel W ebster reported at one point that Madison was too weak to read resolutions brought to his bedside. Id. at 186-87. Both Houses of Congress became “engrossed” for over a month in specula tion on the succession,2 since the Vice President was aged and there was a vacancy in the position of President pro tempore of the Senate. J. Feerick, T he Twenty-Fifth Amendment 4-5 (1976) (Feerick). Madison recovered, however, and no legislation was passed nor were formal arrangements for the delegation or transfer of power implemented.
- William Henry Harrison was inaugurated on March 4, 1841, and died o f pneumonia on A pril 4, 1841. His illness was so short that the question of inability apparently did not arise.
- James A. Garfield was wounded on July 2, 1881, by an assassin and died 80 days later on September 19, 1881. Vice President Chester A. A rthur did not act in his stead. A rthur refused to do so because of a fear, shared by many constitutional scholars of the time, that once he had assumed the powers and duties o f the office, they would “devolve on the Vice President” permanently, leaving him unable to turn the reins back to the President. U.S. Const., Art. II, § 1, cl. 6. See S. Rep.
M a te ria l consulted included the N.Y. Times, S. Rep. No. 66, 89th Cong., 1st Sess. (1965), and hearings held in 1958. Presidential Inability: Hearings on S.J. Res. 100, S.J. Res. 133, S.J. Res. 134, S.J. Res. 141, S.J. Res. 143, S.J Res. 144, S. 238, and S. 3113 Before the Subcomm. on Constitutional Amendments o f the Senate Comm, on the Judiciary, 85th Cong., 2d Sess. (1958) [hereinafter cited as 1958 Hearings ]. A list o f articles on presidential inability can be found in the 1958 Hearings, at 41-42. 2 T he first succession act was passed in 1792. A ct of M arch 1, 1792, §§9-11, 1 Stat. 239. Unsuccessful efforts to change this statute occurred in 1820, 1856, and 1881. 3 W hen Harrison died, Secretary of State Daniel Webster questioned whether the Constitution meant that Vice President John T yler became “A cting President,” rather than the President. Tyler disagreed and took the oath as President, thus establishing the MTyler precedent” that the Vice President does succeed to the Office o f the President when the prior occupant dies. 1958 Hearings at
T he deaths o f Z achary Taylor (July 9, 1850) and Abraham Lincoln (April 15, 1865) were appar ently so swift that their Vice Presidents (Millard Fillmore, Andrew Johnson) assumed control without trouble. Feerick at 7-8.
No. 66, 89th Cong. 1st Sess. 6 (1965) (1965 Senate Report). Although the entire Cabinet believed Garfield to be unable to carry out his duties,4 four of them, including the Attorney General, agreed with A rthur’s analysis. Secretary of State James G. Blaine was in fact criti cized for attempting to usurp presidential powers during Garfield’s lengthy illness. 1958 Hearings at 149-50.
- G rover Cleveland had two major operations for cancer of the mouth in July 1893. He told almost no one, including Vice President Adlai Stevenson. The two operations took place on a friend’s yacht, with Cleveland unconscious and strapped to a chair propped against the mast. Feerick at 11-12. The complete secrecy was due to fears that the country might suffer an economic panic if it knew the President had cancer. The truth was apparently suppressed until 1917. Feerick at 12.
- William McKinley was wounded on Friday, September 6, 1901. He underwent emergency surgery and his doctors issued optimistic statements about his recovery. So positive was the outlook that Vice President Theodore Roosevelt and the Cabinet members who had gath ered in Buffalo over the weekend began to disperse. M. Leech, In the Days of McKinley 598-99 (1959). “[T]he Vice-President was so firmly convinced that the emergency was over that he went to join his family at a camp in the Adirondacks, twelve miles from telegraph or tele phone.” Id. at 599. When McKinley began to fail, a guide was sent up into the mountains to fetch Roosevelt. Although he rushed back, Roosevelt arrived to take the oath of Office 12 hours after McKinley’s death on September 14.
- W oodrow Wilson was incapacitated from a stroke for about eight months of his second term. A t no time did Vice President Thomas R. Marshall attempt to take over. See 1958 Hearings at 19. The hesitation was due to a fear that such action would be viewed as an effort to oust Wilson permanently. When he recovered, Wilson forced Secretary of State Lansing, who had called Cabinet meetings and suggested that Marshall take over as Acting President, to resign, charging him with disloyalty. Id. 1. Franklin Roosevelt was in declining health during his last year in office, and died on April 12, 1945. Vice President Harry S. Truman had had only tw o conversations with Roosevelt since the inauguration, neither dealing with disability. Feerick at 17. Perhaps as a reaction to this, Truman supported a new succession statute, A ct of June 25, 1948, Pub. L. No. 80-771, 62 Stat. 672, 677-78 (1948).
4 Garfield was able to conduct only one minor piece of business—the signing of an extradition paper Feerick at 9 8 Arthur, who succeeded Garfield, suffered from an increasingly debilitating kidney disease while in office. Although he gradually reduced his schedule, he does not appear to have become completely incapacitated. Feerick at 10-11. 6 It was the death of Cleveland’s first Vice President, Thomas A. Hendricks, in 1885, while Congress was out o f session, which accelerated passage of the Presidential Succession Act, Pub. L. No. 49-1, 24 Stat. 1 (1886)
anesthetized for three to four hours, after which Press Secretary Moyers announced that Johnson was again able to make presidential decisions.1 1
The same pattern was repeated in November 1967, when Johnson underwent simultaneous surgery for a polyp on his vocal cord and repair of a ventral hernia. He was anesthetized for about an hour and a half. Note was made of the agreement that could make Humphrey “Acting President” and columnist Tom Wicker urged that the Twenty- Fifth Amendment be ratified.
In December 1968, Johnson was again hospitalized for the flu. The papers, however, said little other than that he worked on government papers on one day of his stay.
- Richard M. Nixon was hospitalized from July 12-20, 1973, for viral pneumonia. The President’s press office said that he would be able to do necessary work and that he was not sick enough to require the Vice President to make special arrangements. In an interview, Vice President Spiro T. Agnew said that there was no agreement between the President and him on what to do in the event of Nixon’s disability and that the issue had never been discussed. Although there were persistent rumors about Nixon’s health during the months prior to his resignation, the only White House announce ment was an acknowledgment that the President suffered from phlebi tis. The operation on his leg did not occur until September 23, 1974, after his resignation.
- Jimmy Carter’s scheduled surgery for hemorrhoids in late De cember 1978, was cancelled. Preparations for the Vice President to assume power under § 3 of the Twenty-Fifth Amendment were also cancelled.
L a r r y L. S i m m s Acting Assistant Attorney General Office o f Legal Counsel
11 Citing recent history, Johnson had urged Congress to act on the disability problem in his State of the Union address in January, 1965. The proposed Twenty-Fifth Amendment was sent to the states in July 1965.
