(This article forst appeared in the American Spectator: https://spectator.org/presidential-succession-law-ticking-time-bomb/)

By: John C. Wohlstetter, Senior Fellow

My series on the 25th Amendment — Part I, historical antecedents; Part II, 25th Amendment genesis; Part III, 25th Amendment implementation today; and Part IV, possible first-ever use of the 25th Amendment’s involuntary presidential disability provision — focused almost exclusively on the Constitutional issues, dipping down into legislative enactment (in legal shorthand parlance, “statutory”) issues only when necessary.

As noted in my series, presidential succession, as enacted as part of the landmark 1947 National Security Act, created the potential for serious conflict at a time when stability is most needed; the updated presidential succession statute is set forth below. Placing the Speaker of the House and President pro tempore of the Senate immediately after the vice president and before any member of the president’s Cabinet — in Constitutional parlance, “heads of the executive departments” — risks having an administration being turned over to the opposition party, in stark contravention of voter preference expressed in the polling booth.

The law provides:

1. Only the Speaker and president pro tem can ascend to the Office of the Presidency for the full remainder of a presidential term.
2. If the elected president is temporarily unable to discharge the “powers and duties” of the presidency, the Speaker or president pro tem serve merely as acting president — they assume the “powers and duties” of the presidency, but do not hold the office — until the president is able to resume serving as president.
3. Members of the Cabinet cannot hold the Office (or title) of President — they can only serve as acting president.
4. The Speaker and president pro tem must irrevocably resign from Congress to become president or acting president. A new Speaker can supplant a president pro tem who is acting president, but cannot replace a president pro tem who also holds the Office of President.
5. Members of the president’s Cabinet stand in line of succession in the order that the departments were created.
6. There is no line of succession to the vice presidency.
7. Under Art. II, section 1 of the U.S. Constitution, to be eligible to hold the Office of the Presidency, a person must be: (a) a natural-born citizen; (b) at least 35 years old; (c) been at least 14 years a resident of the U.S.
8. No one who fails to meet these requirements — whether Speaker or president pro tem or Cabinet member — can qualify to hold the Office of the President; nor can they serve as acting president.

A “Perfect Storm” in the Making

It is now more than a century since World War I ended. Yet unexploded, corroding munitions are still being discovered; periodically one explodes, adding to the Great War’s death toll.

The hidden danger created in 1947 by putting members of the legislature in the line of presidential succession is best illustrated by a dissenting opinion filed in the primary Supreme Court Japanese internment case, Korematsu v. United States (1944). Therein the Court held that the military, per a presidential executive order, could detain en masse 112,000 Americans of Japanese ancestry, based upon fear that they posed a threat of espionage and sabotage — without any supporting evidence offered in the courts as empirical justification. Despite conceding that the vast majority of them were loyal, patriotic citizens, the Court upheld the blanket detention.

Justice Robert H. Jackson, preternaturally wise in several monumental Supreme Court cases, wrote in his dissent to FDR’s wartime executive order:

…[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle.…The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic’.…There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case. (Emphasis added.)

The 1947 presidential succession law creates just such a “loaded weapon” — given the stakes involved in a presidential succession, more accurately in this context, a ticking time-bomb: the prospect of sudden transfer of power to a president of the opposition party.

This prospect first reared its head after Washington’s two terms, when political parties arose; these became ascendant by the 1820s. The Second Congress passed the original 1792 succession law that put the president pro tem of the Senate and the Speaker of the House second and third, respectively, in the line of succession, behind the vice president. The issue resurfaced in 1886, when the Congress was taken out of the line of succession, to be replaced by members of the president’s Cabinet. It resurfaced again in 1947, when President Truman put the Speaker and president pro tem back in line behind the vice president — albeit in reverse order vis-à-vis 1792. It resurfaced a third time (see Part II of my series) in the 1965 debates preceding legislative passage of the 25th Amendment.

Given the widely noted diminished condition of our current president, the ticking statutory time-bomb put in place in 1947 may well, at long last, explode, with a political megaton-force not seen since the first shots fired at Fort Sumter, 160 years ago. It would place at risk the very stability of the republic.

1885-1886: Fixing 1792’s Mistake

The 1881 assassination of president James Garfield revived interest in changing the 1792 law. The Republican Party was deeply split into two factions over the issue of civil service reform. The Stalwarts, which included Garfield’s assassin, Charles Guiteau, supported continuance of federal civil service patronage; Garfield’s faction, the Half-Breeds, supported civil service reform. Upon shooting Garfield, his assassin exclaimed: “I did it and I will go to jail for it. I am a Slalwart, and Arthur will be president.” Two letters were found in Guiteau’s pockets: one addressed to the White House, which stated: “The president’s tragic death was a sad necessity, but it will again unite the Republican party and save the republic. . . . I had no ill-will toward the president. . . . His death was a political necessity.” The other was addressed to vice president Chester Arthur, and included Guiteau’s recommendations for Cabinet appointees.

On Nov. 25, 1885, Grover Cleveland’s vice president Thomas Hendricks died. The office was vacant until Benjamin Harrison was inaugurated March 4, 1889. The 1792 law precluded Cleveland’s choosing a new vice president. The resourceful Cleveland did the next best thing: his first message to the incoming 49th Congress, in December 1885, called for passage of a Senate bill passed in 1885 that had died in the House. In 1886, he secured passage of a law rectifying the 1792 mistake. The line of succession ran through the then-seven Cabinet officers, beginning with the secretary of state, and then treasury, war (renamed Defense in 1949), attorney general, postmaster general (abolished 1971), secretary of the Navy (folded into Defense in 1949) and secretary of the Interior. In event of a double vacancy, the top-ranked eligible secretary was to serve as acting president until either: (a) the president’s or vice president’s disability ended; or (b) a special election was called, and a new president and vice president were elected; or (c) upon the end of the presidential term, on the next Inauguration Day.

The debate was informed by the near-miss attempt to remove president Andrew Johnson in 1868. After the House voted articles of impeachment, the Senate came within a single vote of convicting Johnson. Leading the Radical Republicans at the Senate trial was the president pro tem, Sen. Benjamin Wade of Ohio. With Johnson having succeeded the fallen Abraham Lincoln as president, the vice-presidency was vacant. Per the 1792 law the president pro tem stood in line ahead of the Speaker. It did not go unnoticed that Sen. Wade was hardly a disinterested juror — nor, that one Democratic senator from Johnson’s home state of Tennessee was the president’s son-in-law. The argument that party control might change was also aired in the deliberations, to no effect.

1945-2021: Relapse to Modified 1792

When Franklin Roosevelt died suddenly, less than 100 days into his fourth term, Harry Truman resolved to revise the 1886 law, by placing the Speaker and then the president pro tem back in the line of presidential succession. His stated reasons were: (a) all those in the line of succession should have been chosen democratically by the voters; (b) House members serve two-year terms, versus six years for senators, and hence they are more continually responsive to voter preferences; (c) though elected in a single Congressional district, the Speaker is the only officer, other than president and vice president (albeit, from a different branch of government), who represents voters nationwide, via election as Speaker by a majority of votes in the House.

Truman rejected the argument that voters in quadrennial presidential election years choose to be governed not simply by a president and vice president, but also by an administration for the next four years. The off-year biennial elections amount to only a mid-term grade on the administration’s performance. Truman would not be swayed, however, and he prevailed. Efforts to modify the antiquated 1947 law in 1965 foundered, mainly due to members in both Houses who preferred that there be no 25th Amendment. Rather, they wanted Congress to exercise plenary power to legislate matters pertaining to presidential and vice-presidential succession.

President Who????

To see the emerging danger, consider some of the Speakers and presidents pro tem that have served, since ratification of the 25th Amendment in 1967. Checking the list of House Speakers reveals a group all regarded by the opposing party as intensely partisan and/or not a serious prospective president: Democrats John McCormack (MA), Carl Albert (OK), Tip O’Neill (MA), Jim Wright (TX), Tom Foley (WA), and Nancy Pelosi; Republicans Newt Gingrich (GA), Denny Hastert (IL), John Boehner (OH), Paul Ryan (WI), and Mitch McConnell (KY).

A list of presidents pro tem shows some (though fewer, given the tradition — now greatly eroded — of Senate collegiality) either regarded as partisan, under qualified, or far too elderly to carry the workload of the presidency. Most notably were the cases of Sens. Strom Thurmond, pro tem at age 100, and Robert Byrd, pro tem at age 92. Unlike the office of Speaker (Art. I, sec. 2), the prime duty of presidents pro tem is to issue rulings on parliamentary procedure. Their presiding duties are largely ceremonial. The most important presiding task — breaking Senate tie votes — is given only to the vice president, as president of the Senate (Art. I, sec. 3).

Next: A Replay of 1886?

What would work best is to once again remove Congress from the succession line. But the stars do not seem aligned for this to happen. The current line of Cabinet succession runs to 15 of its 16 members, as Homeland Security Secretary Alejandro Mayorkas is foreign-born, and hence, ineligible.

Proposals since 1886 have included limiting the Cabinet succession line to a few department heads likely to possess national security experience — with State and Defense the first two in line, typically followed by Treasury (currently between State and Defense in the line). The problem with this is that there have been secretaries of other departments more knowledgeable than those ahead of them. The classic example of James Schlesinger comes to mind. Before being chosen as America’s first energy secretary by Jimmy Carter, he had been chairman of the Atomic Energy Commission under Richard Nixon, and secretary of defense under Gerald Ford. As head of the 13th executive department created, he stood way down the line of succession. The sole secretary ahead of him, with comparable credentials, was defense secretary Harold Brown. Further, while secretaries of state are generally regarded as qualified, treasury secretaries include people with no national security credentials to speak of. Salient examples at Treasury — generally chosen for financial or economic expertise — include Paul O’Neill under George W. Bush and Timothy Geithner under Barack Obama. Conversely, Bill Clinton, with no national security background, chose Democrat Lloyd Bentsen, who had deep national security experience.

A Cabinet Succession Reboot?

There is a better way, albeit given the current state of relations in Congress, it won’t happen soon. Specifically:

1. Each president should begin serving — whether at the start of a four-year term, or during a presidential term curtailed by permanent presidential disability (death, illness, resignation, or removal) — with the default list ordered by time of departmental creation. (This allows all presidents to start with the same default list.)
2. At any time, the president may re-order the line of succession, per best judgment as to how they should be ranked in terms of fitness to become president. (This judgment would of course factor in lots of issue expertise besides national security, as well as executive ability and character.)
3. The president’s list then would be submitted to both Houses of Congress. Congress has 10 calendar days (to vote on the list up or down, exactly as sent, e., without alteration. (This ensures that there can be neither “legislative day” shenanigans, nor shuffling of the Cabinet succession deck.)
4. Unless both Houses, by a two-thirds supermajority, vote to reject the list, the president’s choice prevails. (This means a clearly bipartisan vote will be required to reject the list, barring a lopsided House or Senate.)

A final fix, which also can be done by statute, is to provide a succession line and procedure in event the entire Cabinet is killed. One historical near-antecedent transpired Feb. 28, 1844. Under sail of the USS Princeton, the Navy’s first propeller-driven warship, plying the Potomac River, the Navy was demonstrating for President Tyler, leaders of the Congress, and diplomatic invitees the world’s largest Naval gun. Dubbed the “Peacemaker,” its final act that day was to explode, as onlookers crowded around the monster. Seven were killed, including the secretaries of state and the Navy; eleven were wounded, including the Speaker of the House. How best to address the prospect of such a catastrophe today is an open-ended question; but it is worth noting that this gap persists.

Bottom Line

The state of near open civil war that prevails today precludes bipartisan cooperation — especially given one-party control of the White House, Senate, and House of Representatives. It will take electoral outcomes that alter the balance of power, in order to make possible considering change. Placing certain matters under legislative control was part of the rationale during the debates of 1965, by not locking in too much per the text of the Amendment. Preserving maximum flexibility by allowing Congress to play a role seemed the way to go to a majority in Congress.

What makes today’s partisanship so dangerous and obstructive is that the divide is not simply over policy. It is over the very structure of government and the balance between governmental power and individual rights — with rising claims of selective group rights for currently favored constituencies.

Changes in 1967 reflected overwhelming consensus as to the need for something to be done. Such consensus has been shattered. Making fundamental structural changes via razor-thin temporary margins bids fair to gravely wound, if not fatally undermine, the stability of the republic.

But should the republic somehow survive the current grave crises, Congress can play a constructive role in altering presidential succession by statute, and thereby reduce incentives to seek partisan advantage.

John Wohlstetter, a senior fellow at the Gold Institute for International Strategy is author of Sleepwalking with the Bomb (Discovery Institute Press, 2d. ed. 2014).

(This article first appeared in the American Spectator: https://spectator.org/25th-amendment-first-ever-involuntary-departure/)

By: John C. Wohlstetter, Senior Fellow

Yond Cassius has a lean and hungry look
He thinks too much; such men are dangerous.
— William Shakespeare, Julius Caesar, Act I, scene 2

The earlier installments in my series on the 25th Amendment were: Part I, historical antecedents; Part II, 25th Amendment genesis; and Part III, 25th Amendment implementation since 1967. Part IV covers possible first-ever use of the 25th Amendment’s involuntary presidential disability provision.

The Crisis of 2021: Systemic Crisis, Hyper-Partisan Division

We face an emerging — extremely grave — constitutional crisis with the new administration. The America that saw ratification of the 25th Amendment to prepare for instances of presidential succession and disability, and navigated its way through the acute crises of 1973-1974, was despite large partisan divisions sufficiently united to survive serial crises intact. There is ample reason to believe we will not be so lucky this time if an instance of presidential disability emerges.

The common thread running through all post-25th Amendment events has been the avoidance of deep systemic crises. The broad bipartisan consensus underlying the passage and ratification of the 25th laid a firm foundation for future orderly transitions. Such a consensus created lopsided votes in Congress, and permitted speedy action in a legislature where such is the rare exception; conversely, significant opposition precludes it.

The path taken with the 25th Amendment stands as an exemplar of orderly process and widespread acceptance. On January 28, 1965, a mere eight days after being sworn in for his full presidential term, Johnson sent a special message to Congress requesting prompt action. In July 1965, the final version was sent to the states for ratification. The three-fourths benchmark — 38 states out of 50 — needed to satisfy Article V’s requirement for amendments reported out of Congress was reached February 10, 1967. Thus, it took 25 months to reach ratification from initial proposal in Congress.

Sen. Birch Bayh told his fellow senators during the debate on the 25th Amendment: “I have more faith in the Congress acting in an emergency in the white heat of publicity, with the American people looking on. The last thing Congress would dare to do would be to become involved in a purely political move.”

Which brings us to five scenarios of what could occur if President Joe Biden becomes too disabled to act as president. The first three are based on a historical antecedent, though several end differently. The fourth is a fictive case as presented in a realistic political thriller that raises the manifold problems that will likely attend a case of involuntary disability per the 25th Amendment’s Section 4. The final scenario departs sharply from historical antecedents of vice-presidential conduct. To be clear, all five are possible permutations, but none are intended as predictions. The scenarios are intended to paint a picture of what might come to pass, and to aid conceptually in looking at different types of disability crises.

What scenarios appear to fall within the range of reasonable possibility? We begin with an assessment of the president’s first six and a half months.

Current Status: Palace Intrigues

High-level machinations are inherently hard to judge from outside. Much of what appears in the press are orchestrated leaks — at times, competitive leaks by rival factions. But according to a recent interview (2:30) with Rep. Dr. Ronny Jackson (R-TX), the former presidential physician to Presidents Obama and Trump, Biden exhibits physical frailty and mental cognitive decline, and clearly appears not able to meet the immense daily demands of the Oval Office. Jackson wants Biden to take the same 30-question cognitive test that hostile reporters badgered Trump into taking; Trump aced it with a perfect score. Does anyone truly believe Biden could match this? The president is seen far less frequently in public than any president in living memory, and rarely takes spontaneous questions. He held a June 16 one-on-one summit with Vladimir Putin, to mixed reviews, and travels less than previous presidents. Put simply, after running the country’s first ever mostly basement campaign in modern times, he now runs the country’s first ever mostly basement presidency in modern times.

There is, however, one large difference between Biden’s health status and pre-20th century crises. Medical intervention then was often more likely to do harm than good. Recall that the father of our country was serially bled to death in 1799 by physicians trying — via four such bleedings, draining a total of 32 fluid oz. (two pints) in two days — to cure the bacterial infection he contracted working hours in the open field during a steady, soaking rain.

Scenario One — Antecedent: Dwight Eisenhower 1956

Weeks after his landslide reelection, Ike had a small stroke that left him temporarily mute. This came shortly after two major international crises had ended. First came the Hungarian Revolution, brutally suppressed by the Soviet tanks and artillery. In the midst of that came the Suez Crisis. It started when Britain, France, and Israel seized the canal to prevent Egyptian president Gamal Abdel Nasser from closing it to international shipping; it ended when Ike ordered the three allies to withdraw, warning them that he would not back them up against a Soviet threat to use nuclear weapons to settle matters. Two days into this last health event of his presidency, Ike told his inner circle: “If I cannot attend to my duties, I am simply going to give up this job. Now, that is all there is to it.” Vice President Nixon was warned he might become president within 24 hours, but Ike quickly recovered.

SCENARIO ONE: Biden’s physical and/or mental condition diminishes to the point where he himself realizes that much as he wishes to remain president, he can no longer deceive himself. He steps aside voluntarily, and Vice President Kamala Harris ascends to the Oval Office.

Scenario Two — Antecedent: James Garfield 1881

The first protracted presidential crisis came with the shooting of James Garfield by a deranged office-seeker on July 2, 1881. He suffered a flesh wound in one arm and a serious wound in his back. Surgeons were initially optimistic that the president would survive. But the bullet had caused internal hemorrhaging, which in turn caused fatal blood poisoning. This proved untreatable with late-19th century medicine. Garfield lingered for 80 days, dying September 19, having carried out only one minor official act. Chester Arthur, who had never held office higher than New York City port commissioner, became president.

SCENARIO TWO: Biden is taken too ill to be able to discharge his obligations. But his illness may prove treatable with modern medicine. For several months he performs almost no presidential tasks — even fewer than likely he is doing now. He recovers and resumes his current level.

Scenario Three — Antecedent: Woodrow Wilson 1919-1921

On October 2, 1919, Wilson suffered a disabling stroke that left him partially paralyzed, unable for months to do anything of consequence, and after that only did minimal work. The country was effectively run by the first lady, his White House personal secretary, and his personal physician. Cabinet meetings were for months conducted by the secretary of state. Wilson’s two foreign policy goals, ratification of the Versailles Treaty and joining the nascent League of Nations, were kaput. In all, Wilson was gravely disabled for the final 17 months of his term.

SCENARIO THREE: Biden suffers a massive stroke, and is unable to discharge any required task at a meaningful level. Nor is there any chance he can meaningfully recover. But instead of using Section 3 of the 25th Amendment for a declaration of voluntary disability, or resigning outright, Biden hangs on. First Lady Jill Biden, and certain staffers judged loyal by Jill and those she trusts, take over. We may be confident that Kamala will not be part of this group.

Scenario Four — Antecedent: Forcible Removal

In 1968, the great political-thriller novelist Fletcher Knebel published Night at Camp David. In it, the president goes insane and a struggle ensues behind the scenes. The president invites the freshman senator he wants to replace his vice president on his second-term ticket to spend a weekend night at Camp David. The senator observes the president behaving in what lay observers generally consider classic paranoia: a persecution complex (everyone is out to get me) coupled with delusions of grandeur (a new world union of nations, with me as its chosen ruler). The senator compares notes with several inside players he knows, and gets moderately positive responses, tempered by skepticism.

Yet doctors apply an even more skeptical and nuanced calculus. The young senator fails to convince enough major players — senior members of Congress, and the Cabinet; plus the sitting vice president, an associate Supreme Court justice, and the president’s personal physician. He finds his own sanity questioned instead. The president learns that the cabal is meeting in a Georgetown townhouse, and interrupts deliberations by surprise. He puts on a bravura performance, confessing to flashes of temper, but denies that they collectively equate to insanity.

The game appears over. But at the last moment, before going on television to denounce the cabal, the president learns that his pre-existing heart murmur has become heart tremors. He resigns, and the caretaker sitting vice president becomes president for the final months. The young senator takes himself out of the running for the nomination. The fall election looms with no incumbent on the presidential ballot.

SCENARIO FOUR: President Biden’s mental decline steepens, to the point where it is at least debatable whether he understands what his administration is doing. Those surrounding him are divided. The Biden family wants to stay in power, in part to protect members from facing various felony charges. Top advisers see the ship sinking, as the administration drifts. They decide to press the president’s family to persuade Biden to resign. They try, but the president refuses. The vice president and a simple majority of the Cabinet declare that the president is unable to discharge the “powers and duties” of his office. The House and Senate convene; each musters the two-thirds supermajority required for a finding of involuntary disability, so as to permanently disqualify the president. In a first ever use of the “challenge” provisions of Section 4, the president is removed. Vice President Harris ascends to the Oval Office.

Scenario Five: Successor Coup

There is no historical antecedent. As earlier installments in my 25th Amendment series recount, no vice president has even attempted any kind of palace coup. All have taken great pains not to even look like a usurper. Indeed, that history of vice-presidential reluctance no doubt factored into myriad optimistic predictions by senior players involved in adoption of the 25th Amendment. With near unanimity they assumed that all parties and persons involved would in a grave succession crisis act with restraint and probity.

But Kamala Harris exudes ambition. Her performance to date gets a sharply negative rating from voters — two recent polls show her as the most disliked vice president in modern history. This is despite her status as an identity politics trifecta: African-American/Asian parents, plus female. The president, for his part, is slipping badly with independent voters, a group essential to his re-election. Serial flip-flops on pandemic masking have badly hurt the administration’s credibility. Recently, several top female Democratic strategists who formerly held senior positions in the Clinton and Obama administrations got together to brainstorm how Harris might improve her dismal standing with the media.

In a June 8 interview (6:29) with NBC anchor Lester Holt, Harris acknowledged the violence and peril migrants from Central America endure; Harris’ immigration policy goal is to find the “root causes” of migrant flow. Pressed by Holt as to why she had not visited the border, Harris answered: “We’ve been to the border.” When Holt responded that she, personally, had not been to the border, a laughing Harris deflected Holt’s direct, factual question by saying, “And I haven’t been to Europe, either.” Her tendency towards giving condescending, flippant answers to serious questions she dislikes contributes to her negative poll numbers.

SCENARIO FIVE: The first family and presidential advisers stick together as the president’s mental decline accelerates. They aim to accomplish what Woodrow Wilson’s triumvirate did: manage the situation to the end of this term, while not running for re-election. Vice President Harris, seeing her rotten poll numbers, decides that the only way she can become president is to take over mid-term, allowing her to run as an incumbent. She and her key staffers leak copiously to friendly Beltway and social media outlets as to the president’s steepening mental decline. The press, fearing that the Democrats will lose both houses in a mid-term landslide, forces action by boosting public awareness, and thus public sentiment shifts in favor of replacing Biden with Harris. Democratic leaders quietly tell the Biden family that if they do not leave voluntarily, the family will face multiple state prosecutions — which are not covered by presidential pardons. The family persuades a greatly weakened Biden to resign. Democrats run in 2022 without being saddled with Biden’s failures; Harris gets a year-long media honeymoon, running with the vice president of her choice, who is given the same love fest.

Then and Now: Two Vastly Different Americas

Knebel’s scenario in Night at Camp David appears to have been based in part on public remarks Ike made at a May 25, 1964 conference on presidential disability attended by senior members of Congress and leading lights in the legal community. Ike was upbeat as to how the problem might be dealt with:

There is a quarrel about this, that the president being a little bit wacky, thinks he can take back the job but that the vice-president and, let us say, the majority of the Cabinet thinks that he is not capable under the circumstances — and I think the chance is remote that this would occur — regardless of the method determined by the Congress by which this question would be resolved, it is no longer an emergency.

But in a March 3, 1964 letter to Sen. Bayh, chief senatorial sponsor of the 25th Amendment, the former president had said this:

I should ask that the chance that such a dispute might occur for the simple reason that we must assume that in these serious affairs the individuals concerned would be men of good will, concerned with the welfare of the Nation as a whole.…

Do we now have such people on both sides of today’s debates, who can be trusted to act by putting the nation first? We have a Speaker of the House who stacks the January 6 Committee to ensure a partisan result; she is backed by a mainstream media brigade that presents what was a riot as if it were an orchestrated insurrection.

In 1973, then-Sen. Joseph Biden said of Ford’s selection: “The one thing I want to impress on the American people is that we do not think of this is business as usual, that the man we are going to confirm as the vice president of the United States may very well be the next president within the next three years.”

When James Madison became ill for several months in 1813, the prospect that his vice president, 69-year-old Elbridge Gerry, might become president if Madison died alarmed a French minister. He expressed concern that it “would be a veritable national calamity” if Gerry, whom he called “a respectable old man, but weak and worn out,” became president. He said, “All good Americans pray for the recovery of Mr. Madison.”

So, today, do millions of Americans pray for Mr. Biden — despite his being the one who is elderly and manifestly in some measure infirm. A diminished Biden, for many, is far preferable to a healthy, but woefully inadequate Kamala Harris. Such is the dismal state of our republic.

Bottom Line

No outsider can truly know in detail the medical condition and prognosis of the president. He cannot be forced to undergo any medical examination, let alone any course of medical treatment. The press has pointedly, with very rare exceptions, avoided asking about the president’s condition. The vast majority of observers are thus limited to the equivalent of searching inside a pitch-dark warehouse with a flashlight emitting a low-wattage flickering beam.

Proponents of the 25th Amendment answered skeptics by stating that the stability of the republic required its adoption. They conceded that civic virtue was required for presidential succession to work. Going all the way back to the Framers of 1787, leaders have understood this. Hence Benjamin Franklin’s famous quip when asked what the Grand Convention had produced by spending the Philadelphia summer behind closed doors: “A republic, if you can keep it.”

Will we keep it? We should remember our 16th president’s words from 1862:

We shall nobly save, or meanly lose, the last, best hope of Earth.

John Wohlstetter, a senior fellow at the Gold Institute for International Strategy is author of Sleepwalking with the Bomb (Discovery Institute Press, 2d. ed. 2014).

(This article first appeared in the American Spectator: https://spectator.org/25th-amendment-implementation-1973-2021/)

By: John Wohlstetter

In Part I, I covered the historical precedents (1789-1960) up to JFK’s tragically short presidency; Part II covered the years 1961-67, featuring the reaction to 1963’s assassination horror, which led to the 1967 ratification of the 25th Amendment. Part III carries the story through Trump. It begins with the serial vice-presidential and presidential vacancy crises of 1973-74. The years following saw several assassination attempts (two in 1975 and one in 1981) and multiple instances since of temporary presidential disability, with at first a reluctance to invoke the 25th Amendment formally, and later a better practice of using the 25th to cover temporary instances of disability.

The Succession Crises of 1973-74

What President Nixon’s press secretary called a “third-rate burglary” was carried out by seven Republican campaign operatives at an office building in the Watergate Complex on June 17, 1972. By the spring of 1973, it had mushroomed into a first-rate campaign finance scandal. The ensuing Senate Watergate Committee hearings had by June of Watergate Summer exposed a second-rate coverup leading to the president’s 1974 resignation. The prelude to that had been the 1973 travails of Vice President Spiro Agnew, who in June 1973 had become a target of a corruption investigation that was to lead to his resignation on October 10. Agnew pleaded nolo contendere to a single count of tax fraud, thus avoiding indictment on charges of conspiracy, extortion, and bribery arising out of public contracts awarded during Agnew’s tenures as county executive and governor.

October 1973 proved fateful not only for Agnew but also for Nixon, who on October 20 made the mistake that doomed his presidency by firing special prosecutor Archibald Cox. When both Attorney General Elliot Richardson, who had negotiated Agnew’s plea deal, and Deputy Attorney General William Ruckelshaus refused the president’s direct order to fire Cox, Nixon fired both, thus perpetuating what the press nicknamed the “Saturday Night Massacre.” The public outcry forced Nixon to appoint a successor, Texas lawyer Leon Jaworski, who was tactically more skillful than Cox, a law professor. Now Nixon faced not an academic but a savvy trial lawyer, a bad trade.

October 1973 also saw two tectonic events overseas that could have proved highly destabilizing had the 25th Amendment not been in place: the Yom Kippur War and, in its midst, the Arab oil embargo. The former led to a nuclear alert for the first time since the Cuban Missile Crisis; the latter triggered the skyrocketing oil prices that caused significant recessions in 1973 and 1979 and transferred trillions to sheikdoms, with billions invested to finance transnational terrorism. Nixon’s decision to nominate Gerald Ford minority leader of the House was widely praised on both sides of the aisle. Ford’s nomination was confirmed in 57 days.

The second succession crisis came in 1974, as the impeachment proceedings headed to a climax — Impeachment Summer. The final week of July was to prove the president’s Waterloo. On July 24 in U.S. v. Nixon, the Supreme Court ruled 8-0 that a president’s claim of executive privilege must yield to a subpoena of evidence pertaining to a specific criminal case; William Rehnquist, then an associate justice, recused himself, having provided legal advice to attorney general John Mitchell, a Watergate target.

On July 30, the House Judiciary Committee had sent three articles of impeachment to the House:

• Obstruction of justice
• Abuse of presidential power
• Defiance of a lawful subpoena for taped White House conversations pertinent to the Watergate coverup

Public disclosure of a taped conversation in which Nixon had ordered the FBI director to curtail the bureau’s investigation of certain Watergate matters led a delegation of senior GOP leaders to visit the president. They told him that the full House would surely impeach him and that enough Republican senators would cross the aisle and vote to convict in the ensuing Senate trial. On August 8, the president addressed the nation; on August 9, he resigned, and Ford was sworn in. To succeed him as vice president, Ford nominated former New York Gov. Nelson Rockefeller on August 20; on December 9, the House-Senate voted 90-7 (93 percent) to confirm, and on December 19, the House voted in favor, 287-128 (69 percent). On September 8, Ford pardoned Nixon, who otherwise would have been indicted; the decision angered millions and was a significant factor in Ford’s losing the 1976 presidential election to Jimmy Carter. Rockefeller’s path from nomination to confirmation took 121 days, more than twice that for Ford.

Near Misses (1975, 1981, and 1998-99)

In 1975, two would-be assassins tried to shoot President Ford. One, Sara Jane Moore, fired her .30 caliber handgun at a 40-foot range, narrowly missing the president; her second attempt was deflected before she could fire by an alert bystander. Incredibly, Moore had been arrested the day before for illegal handgun possession but was immediately released. The other, Lynette (“Squeaky”) Fromme, a member of the Charles Manson “family” albeit not implicated in any of the cult’s murders, tried to shoot Ford with a .45 caliber handgun at point-blank range and pulled the trigger but the chamber was empty; she was grabbed by a Secret Service agent, convicted of attempted assassination, and sentenced to life, but paroled in 2009. (Bonus — NOT making this up: As a child, Fromme was part of a dance group that appeared on The Lawrence Welk Show and . . . at the White House)

Ronald Reagan had an even closer call, having actually been shot. The whole story is told in Del Quentin Wilber’s 2011 book, Rawhide Down: The Near Assassination of Ronald Reagan. (“Rawhide” was Reagan’s secret service code name.) On March 30, John Hinckley, who had become obsessed with assassination after watching the Robert De Niro film Taxi Driver, which featured actress Jodie Foster, on whom he had a crush, decided that he could impress her by assassinating the president. Hinckley stood in a crowd that afternoon and rapidly fired six shots from his .22 revolver as Reagan exited the Washington Hilton Hotel rear entrance after giving a speech to union supporters. One bullet ricocheted off the presidential limousine, another gravely wounded Press Secretary James Brady, and one bullet each struck Secret Service agent Timothy McCarthy and D.C. police officer Thomas Delahanty. Hinckley won acquittal by pleading insanity, which led to a change in the federal insanity defense law. Hinckley also had once been arrested in Nashville — for illegal possession of a firearm — during Jimmy Carter’s term. In 2016, a federal judge ordered Hinckley, then age 61, released, ruling that he was no longer a threat.

Reagan’s survival was miraculous. The bullet was a “Devastator” designed to explode upon impact. The fragmented bullet had entered his lung. Jerry Parr, the secret service agent who had pushed Reagan into the presidential limo and rolled on top of him, noticed as they headed back to the White House — the originally preferred destination for reasons of security, in case other assassins were at large — foamy blood on Reagan’s lips, indicating a punctured lung. Parr immediately ordered the driver to head for nearby George Washington University Hospital. His decision saved Reagan’s life.

Reagan wound up politically profiting from his near-miss due to his widely reported aplomb at the hospital. While he was being treated, he quipped to Parr: “I hope they (the doctors) are all Republicans.” He told the doctors: “All in all, I’d rather be in Philadelphia.” His first words to Nancy Reagan were: “Honey, I forgot to duck!” The public was under the impression that Reagan was immediately able to fully resume his presidential schedule. Medical briefings by GWU medical staff were upbeat, with no mention made of how close Reagan came to dying. But according to his personal physician, it was not until June 3 that Reagan worked a full day, and not until October that he told his doctor: “Now, I really feel like I’m all the way.”

Less remembered, but a big story for a few days, was the disastrous press conference held at the White House on March 30. With Reagan under general anesthesia, clearly, he was temporarily disabled. At the White House, Deputy Press Secretary Larry Speakes, replacing his permanently disabled boss, was asked who had command of the nuclear codes, given that Vice President Bush was on an airplane, flying back from Texas. The inexperienced Speakes was sputtering, looking like a deer caught in the headlights; he had no idea how to answer such a question. Downstairs in the White House Situation Room, meeting with other national security officials, the secretary of state, Alexander Haig, rushed upstairs into the press room, announcing that he was “in control here” until Bush returned, and that if anything happened, he would check with the vice president.

Unfortunately, Haig also said: “Constitutionally, you have the president, the vice president and then the secretary of state, in that order.” Haig, an expert on national security matters — albeit, later on, Defense Secretary Caspar Weinberger told Haig that he had misstated the nation’s alert status — was hardly one of the best constitutional scholars. He had omitted the Speaker and president pro tem, both of whom stood in front of Cabinet officials in the line of presidential succession. People more knowledgeable on the relevant laws sat downstairs, aghast, including Attorney General William French Smith. Haig, in his haste, was flustered as he took the podium, which amplified the negative impact of his well-intentioned effort.

The only senior official who had done any contingency planning was White House counsel Fred Fielding, whose preliminary draft became the basis for handling future instances. Twenty-fifth Amendment scholar John Feerick notes that it remains unclear to what degree Vice President Bush was involved; Bush, for his part, was scrupulous in avoiding even the appearance of being a usurper. He flew from Andrews Air Force Base to the vice president’s residence and then took a chopper to the White House South Lawn. He worked as acting president from the vice-presidential office. In any event, the Haig kerfuffle proved a proverbial tempest in a teapot, thanks to the president’s bravura performance.

Mini-Intervals (1985-2007)

Reagan, Bush 41, and Bush 43 saw several episodes of routine presidential incapacity due to the administration of anesthesia. In 1981, Reagan’s advisers decided not to invoke the 25th Amendment. According to Nancy Reagan and others, the 25th Amendment was informally invoked when Reagan went under surgery in 1985 for the removal of colon polyps. It was not formally, publicly invoked for fear that acknowledging presidential disability would alarm the public and our allies. To reassure the world, the first lady stayed at the White House, and the vice president stayed at his family summer home in Maine. In early 1987, some White House aides reportedly asked Chief of Staff Howard Baker to invoke the involuntary disability provisions of Section 4 of the 25th, asserting that the president was “inattentive and inept.” Nothing was done.

In May 1991, President Bush had minor surgery for an irregular heartbeat, but not under general anesthesia. That December, he had an intestinal virus that struck him at dinner during a state visit to Japan; he recovered by morning. In neither instance was the 25th invoked.

During Bill Clinton’s presidency, in March 1997, he slipped on stairs while visiting Aussie golfer Greg Norman. The “White Shark” caught Clinton and cushioned his fall, preventing serious injury. The president underwent knee surgery, for which he was put under local anesthesia. A 25th Amendment letter was drafted but not transmitted.

Bush 43 & VP Cheney

On June 29, 2003, President Bush formally invoked the temporary disability provisions of Section 3 when he was given anesthesia during a colonoscopy. The procedure took only 20 minutes, but Bush did not resume his powers until fully clear of sedation effects. Vice President Cheney was acting president for 2 hours, 15 minutes. The ongoing War on Terror was the stated reason for transferring power. In July 2007, Bush underwent a similar procedure. This time Cheney was Acting President for 2 hours, 5 minutes.

For his part, Cheney, because he had a long history of coronary artery disease, and aware that the 25th Amendment does not have a vice-presidential disability provision, had his chief of staff prepare a resignation letter, signed by the vice president, to be effective upon delivery to the secretary of state. Only the president was shown the letter. The president alone would decide whether to deliver the letter.

Trump (2017, 2020, 2021)

Thrice in President Trump’s term the idea of using the involuntary disability provisions of Section 4 was surfaced. In April 2017, Deputy Attorney General Rod Rosenstein reportedly proposed removing Trump because of his firing of FBI Director James Comey, and alleged collusion with Russia. He reportedly gathered evidence by secretly taping the president. Rosenstein denied this, saying his suggestion was “sarcastic” and “in jest.”

In October 2020, when Trump and the first lady contracted COVID, there was public discussion of presidential disability if the president’s condition worsened and depending upon what medications he was taking. The president rapidly recovered, and nothing came of this.

After the January 6, 2021, Capitol riot, some in Congress called for using the 25th Amendment. On January 11, House Speaker Nancy Pelosi give Vice President Mike Pence 24 hours to invoke the involuntary disability clause of Section 4, or else she’d call for impeachment. Pence refused.

Bottom Line

Modern 25th Amendment precedents have made Section 3 on temporary disability routine in straightforward cases. While Section 4 on involuntary disability has never been used, that may change with the current administration.

John Wohlstetter, author of Sleepwalking With the Bomb, is a senior fellow at the Gold Institute for International Strategy (www.Goldiis.org)

In Part I, I covered historical precedents from the Republic’s 1789 birth to the end of President Eisenhower’s tenure. Part II covers the Kennedy-Johnson years, when events pushed the president and Congress towards adopting the 25th Amendment to stabilize presidential succession.

Turning Point: JFK’s Thousand Days (1961-1963)

The ascension of John Fitzgerald Kennedy as 35th president of the United States on January 20, 1961, was an especially festive occasion. The first inaugural telecast nationwide, its audience was swelled by students on the eastern seaboard, much of which was blanketed by a blizzard in the preceding 24 hours. A seemingly vigorous president, three decades younger than the elderly man he replaced, stepped up to the microphone to deliver what has since been widely recognized as one of the greatest inaugural addresses.

Kennedy’s apparent robust health was fiction: he suffered from numerous maladies, some known — his back troubles; others unknown — his having Addison’s disease, a rare malady, potentially fatal, in which the adrenal glands develop hormonal — and, hence, functional — insufficiency. JFK was philosophical about the risk of assassination, saying matter-of-factly: “If anyone is crazy enough to want to kill a president of the United States, he can do it. All he must be prepared to do is give his life for the president’s.”

Author Gerald Posner recounts in his superb 1994 book, Case Closed, the chaotic aftermath of the shooting and JFK’s having been pronounced dead at Parkland Hospital. The president’s body was to be flown back to the Capital on Air Force One with vice president Lyndon Johnson and First Lady Jacqueline Kennedy. But the Dallas authorities stated that they would first perform an autopsy in Dallas before allowing shipment. LBJ would not leave without the casket, and Mrs. Kennedy would not leave the hospital without her husband’s body. A tense confrontation between the Secret Service ensued, with the agency prepared to force the issue. Unknown to those outside the hospital, the doctor in charge of the emergency room had authorized removal. In any event, violence was averted, and before takeoff LBJ was sworn in on Air Force One by a federal judge.

Such disputes are of course well below the level of constitutional questions, but one thought dominated discussion about presidential disability, in the wake of the assassination. John Feerick, in his authorized history of the 25th Amendment, quotes New York Times columnist James Reston, writing on November 23:

For an all-too brief hour today, it is not clear again what would have happened if the young president, instead of being mortally wounded, had lingered for a long time between life and death, strong enough to survive but too weak to govern.

LBJ fully understood this, and made shepherding a constitutional amendment covering presidential and (with limits discussed below) vice-presidential succession a priority, from proposal through final ratification.

The 25th Amendment Emerges: 1964-1967

Historically antecedent to the serial deaths and disabilities of presidents and vice presidents was how the 1787 Grand Convention dealt with succession issues. Feerick notes that the vice presidency was minimally covered during the three and a half months in Philadelphia. The vice president, a member of the executive branch, would be the ex officio president of the Senate; in event of presidential disability or death, he would succeed the president.

Although not explicit in the original constitutional language, the Framers drew a clear distinction between a temporary acting president, and a permanent successor president. The former would assume, for the duration of the president’s disability, the “powers and duties” of the president, but not the actual office of president. This allowed a disabled president, upon removal of disability, to resume his position as chief executive. Only if the president leaves office irrevocably — dies, resigns, or is removed — does the vice president ascend to the office of president. This arrangement, informal and improvised ad hoc, prevailed for 150 years, until superseded by Section 3 of the 20th Amendment, first used in January 1937.

Though treated as superfluous appendages well into the 20th century, between 1841 and 1964 eight vice presidents succeeded a deceased president. In all, in the 176 years from 1789 to 1964, the vice presidency was vacant for over 37 years — more than 20 percent of the time.

And up until 1886, the sole provision, by 1792 statute, for presidential succession beyond the vice presidency provided only for the president pro tem of the Senate and then the speaker of the House; no Cabinet officers, nor any other persons, were in the line of presidential succession. The Speaker was placed behind the president pro tem because members of the House represent a single Congressional district, whereas senators are chosen statewide (originally by state legislatures, then by voters upon ratification of the 17th Amendment in 1913).

Flashback: 1886 and 1947 Succession Laws

Ironically, while for a century the new republic had no provision for succession to the vice presidency, during colonial times there had been such arrangements. Provinces had a governor and lieutenant governor; if both were vacant, a governor’s council (loosely equivalent to today’s presidential Cabinet) or the senior councilor would step up. Both Rhode Island and Connecticut used legislative replacements on “numerous occasions.”

Nothing was done in the First Congress; Feerick notes that one member of that Congress forecast that a double vacancy would not occur even once in a century; another member said that it would not happen more than once in — NOT making this up — 840 years. (A double vacancy can be simultaneous — in 1963 had LBJ been riding in an open car and there had been a second shooter; or it can be serial — in 1973 had Nixon resigned after Agnew did and before a new vice president was confirmed by Congress.)

The Second Congress passed the first succession law (noted above), and no double vacancy occurred, though presidents John Tyler (injured by an explosion) and Millard Fillmore (taken seriously ill with malaria) made for close calls. The bill also mandated a special election in event of a double vacancy.

The 1886 law eliminated the succession of president pro tem and Speaker, substituting Cabinet line of succession (only seven departments in 1886) in this order: State, Treasury, War, Attorney-General, Postmaster-General, Secretary of the Navy, and Secretary of the Interior. From 1886 to 1945, three presidents and two vice presidents died in office, but fortunately, there was no double vacancy.

The 1947 law in my view was the worst domestic policy mistake of Truman’s presidency. Truman proposed what remains the law today: the Speaker of the House and then the Senate president pro tem stand in third and fourth positions. He reasoned that although the Speaker is elected by only 1/435th — less than one quarter of one percent — of the national electorate, the House elects a Speaker, representing all House districts in that capacity. Further, House members are up for election every two years, making them more responsive to voters than senators serving six-year terms. Truman’s choices were politically palatable to the Republicans, who after the 1946 elections controlled both houses of Congress. The prospect of control shifting to the opposition party should a double vacancy occur would effectively repudiate the voters’ choice of administration — voters vote not for presidents and vice presidents alone (or against the other party’s ticket); they also vote to be governed by a particular administration, with a mid-term grade given after two years. As Eugene McCarthy — an independent, albeit he usually voted with the Democrats — put it in 1964:

The succession law should respect the mandate of the people, who vote not only for a man, but also, in a broad way, for his party and his program. The elevation of a leader of another party in mid-term is undesirable in principle and could have most unfortunate practical effects.

Frequently, the opposition party has either controlled one or both houses of Congress. In the 19th century this happened with 15 Congressional sessions, first in 1827; in the 20th, 20 times, first in 1913; and already in the 21st, 5 times, first in 2001. The current Congress is the 117th. Thus of 117 Congresses, 40 times — 34 percent — have featured partisan division. Indeed, Presidents Ronald Reagan and George H.W. Bush, during their entire 12 years in office, never controlled both houses.

When the Nixon-Agnew crises for 1973 and 1974 (more on this below) came to pass, the House Speaker was elderly Democrat Carl Albert of Oklahoma, a cipher whom no one save political junkies and insiders have ever heard of, outside his home state. Albert, to his credit, said: “Lord help me; I pray every night it doesn’t happen.”

The 25th Amendment

The text of the 25th Amendment is one of the longest and most complex of the 27 Amendments ratified in the 230 years that began with the first ten — the Bill of Rights — on December 15, 1791. It is divided into four sections, the first three of which are simple, each addressing a single problem. Section 4 is long, complex, and addresses several problems. Section 1 provides that whenever — and however — the president permanently leaves office, the vice president automatically succeeds him. Section 2 provides that the new president shall nominate a vice president, effective upon confirmation by majority vote of both houses of Congress.

Section 3 covers voluntary disability. It also specifies implementing procedures: a president who is temporarily disabled must send a written declaration to the Speaker and president pro tem advising them of his disability; the vice president becomes acting president, assuming the “powers and duties” of the presidency without taking office. Upon termination of the president’s disability, he sends a written declaration of recovery to the Speaker and president pro tem. The text of Section 3 does not specify when declarations become effective. During George W. Bush’s first term, Attorney General Alberto Gonzales was asked by a reporter when voluntary disability declarations become effective. He answered that Section 3 does not specifically say, and hence (his opinion, not contradicted since) such declarations are effective upon transmittal.

Section 4 encompasses in a single paragraph (numberings below are mine) the thorniest issues surrounding when a president declares, or expresses an intention to declare, himself fit to resume his office, and designated major players disagree. The “challenge” provisions, covering involuntary disability, are necessarily detailed, and can be divided into four parts:

1. Whenever the vice president and a majority of either the Cabinet, or “such other body as Congress shall by law provide” transmits a written declaration to the Speaker and president pro tem that the president is unable to discharge the “powers and duties” of his office.
2. Congress “shall decide” the issue, assembling within 48 hours for that purpose if not in session.
3. Section 4 declarations become effective when received. Within 21 days of such receipt, Congress must decide the issue.
4. If Congress fails to decide, by a two-thirds vote in each House, the president recovers the “powers and duties” of his office.

Unspecified in Section 4 is whether the declarations therein by the vice president and by the Cabinet are to be issued jointly or separately. As logistics in emergencies may dictate one form over the other, it was best left unsaid. Notably, the courts are left entirely out of these matters, with no provision for judicial review.

One final major omission: the president- or vice president-elect dies after the election and before Congress formally certifies the result. Such a procedure would properly be done by another constitutional amendment. Feerick observes that these kinds of fundamental issues are best decided in periods of relative calm, hardly the case today.

Bottom Line

If the proverbial best is the enemy of the good, then it can be said that with the 25th Amendment, the perfect is the enemy of the excellent. The 25th covers extraordinarily complex issues with remarkable clarity, few omissions, and wisely leaving unsaid certain matters that are inherently impossible to predict in advance. Put simply, presidential and vice-presidential succession are riven with the uncertainties endemic to countless possible permutations and the vagaries of human fallibility.

John Wohlstetter, author of Sleepwalking With the Bomb, is a senior fellow at the Gold Institute for International Strategy (www.Goldiis.org)

This article first appeared in the American Spectator: https://spectator.org/biden-presidential-disability/)

It appears increasingly unlikely that President Joe Biden can finish this year, let alone his term, in the Oval Office. One need not be a physician to see the substantial cognitive decline that’s occurred even since Biden was a candidate. Sooner or later, Biden may either be persuaded to voluntarily resign or face a first-ever formal challenge to a president’s continuance in office, per the 25th Amendment.

To date, we have managed reasonably well in the face of presidential disability, with the signal exception of the Lincoln assassination. His death unleashed demons that dashed Lincoln’s hopes for the aftermath of America’s most ruinous war that, “with malice towards none and charity for all,” would “bind up the nation’s wounds.” Today’s emerging grave crisis comes at a time that manifests the most savage domestic partisanship since the Civil War, exacerbated by the malignant accelerants of mass and social media and exploited by a coterie of political, financial, cultural, and globalist elites. Society is still reeling from 18 months of pandemic hell and summer 2020’s protected orgiastic rioting. The latter triggered nationwide destruction of once-revered national symbols and left major American cities devastated, with spiraling crime and sputtering economies. Never in my 74 years of life — not even at the height of the Cold War, save for the transient fortnight of 1962’s Cuban Missile Crisis — has the famed first verse of William Butler Yeats’s poem, “The Second Coming” (1919), seemed more apt:

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

In a historical coincidence, 1919 marked the first great 20th-century leadership crisis in America, that being the year that Woodrow Wilson suffered a massive, permanently debilitating stroke. Then, in 1945, came Franklin Roosevelt’s death, less than 100 days into a term for which he should never have run; it left Vice President Harry Truman scandalously unprepared by the dying FDR, who never even told Truman about the atomic bomb. Fortunately, Truman rose to the occasion. The third crisis was after John F. Kennedy’s assassination, when an orderly succession by Lyndon Johnson was handled as well as could be hoped without the formal guidance that a constitutional amendment would have provided. Johnson made the 25th Amendment a primary project for his administration and succeeded in winning ratification halfway through his one full term, to his great credit.

But our story begins nearly two centuries earlier, when the 1787 Grand Convention yielded a Constitution that was a marvel, without equal on the planet, but also without addressing the grave issues attendant to presidential and vice-presidential disability. To be fair, the Framers were dealing with immense, complex, and vexing issues of fundamental structure, powers, and rights, all from scratch and within a narrow window of time. Had this been missed, it might well have doomed hopes for “a more perfect union” for decades, perhaps forever.

From Washington Through Taft (1789–1912)

In the nation’s early days, presidential and vice-presidential disabilities were minimal. Two vice presidents who served under James Madison died while in office (George Clinton, 1811, and Elbridge Gerry, 1812); a third vice-presidential vacancy occurred in 1832, when John C. Calhoun resigned to accept an appointment as senator for South Carolina. In all, during Madison’s two terms, the nation was without a vice president for over three years. The only presidential disability of consequence was when Madison was sidelined for four months in 1813 with an illness never definitively diagnosed.

The 1840s and 1850 were to provide several dramas. William Henry Harrison died of pneumonia one month after his March 4, 1841, inaugural address, which ran more than two hours and was delivered in a cold rain. John Tyler succeeded him. Though Tyler was not required by the Constitution to take an oath when ascending to the presidency — the Framers thought a vice president having taken the vice-presidential oath sufficed — Tyler insisted on being formally sworn in, establishing a precedent followed ever since. Similarly, Millard Fillmore succeeded Zachary Taylor in 1850, and Andrew Johnson did so upon Lincoln’s murder by John Wilkes Booth in 1865.

The first protracted presidential crisis came with the shooting of James Garfield by a disgruntled office-seeker on July 2, 1881. Garfield lingered for 79 days and died on September 19. Chester Arthur, who had never held office higher than New York City port commissioner, became president. At the time, not only was the vice presidency now vacant, but the offices of president pro tempore of the Senate and speaker of the house, the only two in line of succession per a 1792 law, were also vacant.

Had Arthur died before Grover Cleveland was sworn in on March 4, 1885, the only procedure available was to call a special election. Not until the 1886 federal election law was passed were Cabinet officials placed officially in the line of succession. The 1886 law, passed during Grover Cleveland’s first term, added the then-existing seven Cabinet officers to the succession list in the order that departments had been created, beginning with the State Department and Treasury Department.

Cleveland’s second term was marked in early 1893 by developing a cancerous tumor in his right jaw while on vacation. He underwent emergency surgery, during which part of his jaw was removed to be replaced by an artificial implant. It was five weeks before he returned to Washington. Of this drama, not only was the public unaware; only one member of the Cabinet knew. Worse (not making this up), Vice President Adlai Stevenson (whose son was to lose twice to Eisenhower, six decades later) was kept in the dark. It was not until 1917 that the episode was made public. In the interim, on September 6, 1901, an anarchist gunned down William McKinley, who died eight days later, which made Theodore Roosevelt president.

Then the you-know-what really hit the fan.

From Wilson Through Eisenhower (1913–60)

Woodrow Wilson fell ill in September 1919. He was in the later stages of a punishing nationwide tour searching for support for ratification of the Treaty of Versailles and entrance into the nascent League of Nations. He returned to Washington on September 28, and on October 2, he was laid low by a massive stroke that paralyzed his left side. Thus ended any serious chance of Wilson achieving his cherished twin goals (albeit, both battles were already steeply uphill). For more than six months, Wilson hardly saw anyone and was only able to do minimal work for the remainder of his term. From October 2, 1919, to March 4, 1921, when Warren Harding became president, the nation was without a fully functioning president.

In his magisterial biography, historian August Heckscher wrote that warning signs had preceded Wilson’s collapse for decades. As early as 1896, he had endured episodes of “neuralgia,” and in 1906, he suffered a stroke that left him nearly blind in one eye. In the run-up to the final sequence of strokes that felled him, he was hit with a series of transient ischemic attacks (mini-strokes).

Because there is archival film footage of Wilson’s presidency, there is a tendency to think of his tenure as a genuinely modern presidency. Yet this was hardly the case. The first transcontinental telephone call was made in 1915; it was not until 1920 that the first commercial broadcast radio station went on air (in Pittsburgh). Actual nationwide broadcast radio made FDR the first radio president, yet it was not until 1934 that telephone service reached 50 percent of Americans. And it was not until the presidency of Harry Truman that, in 1948, the first regular over-the-air nationwide broadcast television programs made their debut.

Thus was made possible what amounted to a sub-silent regency on the part of Edith Bolling Galt, the prominent socialite and second wife of Wilson; Wilson’s personal secretary, Joseph Tumulty; and the president’s physician, Dr. Cary Grayson. A few Cabinet members knew —notably, Secretary of State Robert Lansing, who confronted Tumulty and Grayson the day after the president’s massive stroke. He told them that the vice president should step in, per the Constitution’s 12th Amendment — “in the case of the death or other constitutional disability of the president” — given Wilson’s manifest inability to carry on. Asked by Tumulty, who would decide Wilson’s inability, Lansing replied that Tumulty and Grayson should do so. Tumulty and Grayson adamantly refused. By October 4, Grayson had concluded that Wilson would never recover. Heckscher wrote, “Thus begun, with the silent ascent of some, and the active maneuvering of others, such a coverup as American history had not known before.”

Vice President Alfred Marshall, whom Wilson thought “a small-calibre man,” was kept in the dark. For his part, Marshall was in no mood to accept designation as acting president, fearful of the first lady. Reputedly he said, “I am not going to get myself entangled with Mrs. Wilson.” Lansing, for his part, convened the Cabinet some 20 times during the worst months of Wilson’s illness, to make essential decisions before Wilson’s minimal — more accurately, pseudo — recovery.

Warren Harding was stricken in late July 1923 while on tour, succumbing to cerebral thrombosis (blood clot) on August 2, and was succeeded by Calvin Coolidge.

Fast forward to 1945. FDR traveled some 5,300 miles each way to an arduous February summit in Yalta and had a week-long summit meeting with Stalin and Churchill sandwiched in between. While he was taking much-needed rest at his home in Warm Springs, Georgia, after his journeying, he died of a massive cerebral hemorrhage on April 12. FDR’s physicians had examined him in early 1944 and realized he was gravely ill, but the diagnosis was not even shared with FDR’s family.

Dwight Eisenhower’s eight years were marked by three notable health crises in his second term. “Ike” had a heart attack in late September 1955 and could not meet with his Cabinet for two months. He did not fully recover until mid-January 1956. That June, Ike had surgery to remove an obstruction in his intestine. It was two months before he could resume a full schedule. In late November 1957, Ike had a minor stroke that left him with difficulty speaking, but he was back at work within a week.

Two days into this last ordeal, Ike told his inner circle, “If I cannot attend to my duties, I am simply going to give up this job. Now, that is all there is to it.” Top Eisenhower aide Sherman Adams then alerted Vice President Richard Nixon that he might become president in 24 hours. The popular Ike finished his second term, but unbeknownst to all at the time, the American — and world — stage was set for the political shock of a lifetime.

Kennedy and Beyond

America weathered major presidential health crises several times by narrow margins, albeit not without key business at times being delayed or not done at all. But then came November 22, 1963, and America’s lucky streak ended on a scorching day in Dallas. The impact upon the American polity was captured in an exchange between Washington Post columnist Mary McGrory and Daniel Patrick Moynihan. She recalled saying to Moynihan, then an assistant secretary of labor, “We will never laugh again.” Moynihan replied, “Mary, we’ll laugh again, but we’ll never be young again.”

Part II on this complex subject will begin with the calamitous JFK assassination, and end with the 1967 ratification of the 25th Amendment

John Wohlstetter is a senior fellow at the Gold Institute for International Strategy (www.Goldiis.org) author of Sleepwalking With the Bomb (Discovery Institute Press, Second edition 2014).

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(This article was originally published in The Epoch Times: https://www.theepochtimes.com/how-to-keep-the-taliban-flush-with-bombs_3919804.html)

A terrorist can really express himself with 5,000 metric tons of explosives. That’s precisely why specialized teams of U.S. troops and contractors in Afghanistan helped account for and secure huge stockpiles of munitions stored at eight key sites across the country.

But not anymore. Those Americans have already headed home, and any remaining folks capable of assuming the mission are withdrawing along with all the other Americans ordered out by President Joe Biden.

The Afghan National Army (ANA) colonel left holding the bag and responsible for this ammo is worried. “What happens when everything turns bad,” he asked, “and this stuff ends up in enemy hands?”

His old boss, ANA General Hotak, former Chief of Munitions Management for the Afghan Ministry of Defense, may have provided the answer. “There are enough explosives here to supply operations for the next twenty-five years,” he said.

Retired U.S. Army Special Forces Colonel Ron MacCammon agrees. “This stuff is all vulnerable to Taliban advances and tribal and militia influences if the situation deteriorates. Some of this ammunition could easily find its way into the hands of malign actors and turn up in global terrorist or criminal networks.”

MacCammon should know. He spent years in Afghanistan directly involved in specific U.S. programs purposed to keep this stuff out of enemy hands. After ten years of Soviet military presence there and twenty years of American presence, it’s not surprising that the stockpiles, acknowledged and clandestine, are overwhelmingly of U.S. and Soviet origin.

The bulk of the tonnage is of small arms ammunition, but also included are large quantities of other classes of munitions, such as hand grenades, 82 mm and heavier mortars, RPGs and other light anti-tank weapons, Soviet-era anti-tank landmines, and various other explosive compounds including Composition C4. Of course, that’s just what’s on the books. The ANA has always maintained other munitions in other bunkers that they keep off-limits to American eyes.

The locations of the eight major munitions storage sites are known to everyone, including the Taliban. Located at various points along Afghanistan’s Ring Road, each site contains dozens of bunkers, depots, or 40-footlong containers. We know the tonnages and types of munitions at each major site but one.

That one is close to the capital, and the ANA are very reluctant to disclose the capabilities they keep close to the capital, so they haven’t told us much about what they keep there. It’s safe to say that its quantities are substantial, and its types of munitions include “specialty items.”

What are “specialty items”? Things like MANPAD surface to air missiles. Yeah, those. All told across all sites we’re talking nearly 5,000 metric tons.

To make matters worse, with the departure of American expertise, so went Afghan willingness to continue using the computerized munitions accountability system we helped install. Now the state of the art in munitions accountability for the ANA is a pencil and ledger system. No joke.

In fairness, an experienced international NGO supported by U.S. and E.U. funding is now providing munitions management assistance to the ANA. The problem is members of this same NGO, likely in fear of running afoul of Taliban desires, have a reported history of refusing to clear IEDs emplaced by the Taliban. That doesn’t exactly inspire confidence the members of this NGO will resist Taliban desires in the future.

So it’s not like we don’t know that this stuff is vulnerable. It just seems we don’t care.

Here’s when we WILL care—when a platoon’s worth of next-generation shoe bombers get their hands on several hundred pounds of C4, for example. C4 is 30 percent more powerful than the so-called Mother of Satan, TATP, the explosive that al-Qaeda member Richard Reid used in his attempt to bring down American Airlines Flight 63 in 2001. According to FBI sources Reid used only 10 ounces. Imagine how creative al-Qaeda members can be should they take possession of 5,000 metric tons of explosives.

We can reduce the likelihood of such an atrocity and worse from occurring, and doing so is squarely in our national interest, but doing so will require the honesty and the courage to say, “You know what? I was reckless. We need to put enough American combat power back on the ground to secure these munitions until they can be destroyed or otherwise rendered safe.”

A man who knows more than a little about violence in Afghanistan is Ahmad Massoud, son of the late Ahmad Shah Massoud, former commander of the Northern Alliance who was assassinated by order of Osama Bin Laden two days before 9/11. When I asked Massoud about the likelihood of these munitions finding their way into Taliban hands, he replied, “That is certain, so we should thank God that Afghanistan doesn’t have a nuclear weapon.”

Amen.

Ernie Audino is a retired brigadier general, U.S. Army. He serves on the staff of U.S. Congressman Michael Waltz and is a senior military fellow at the Gold Institute for International Strategy and at Soran University in the Kurdistan Region of Iraq. He is the only American general officer to have previously served a full year on the battlefield embedded with Kurdish peshmerga forces.

For decades now our Western society has made a success out of democracy and an economy based on free market forces. It is no coincidence that the two go hand in hand, because in an environment where people have the freedom to think and act, innovation and progress arise. Another key component of this success was affordable and reliable energy. The prosperity that these three components have brought us has also ensured that we have made great strides in improving the environment and living standards especially in the Western part of Europe.

But the economic freedom that has brought us so much may well be over. Today, ‘Fit for 55′ is presented as part of Frans Timmermans’ Green Deal, a mega package of legislation from the European Commission to ‘green’ the economy.

Updates to existing EU laws:

● Revision of the EU emission trading scheme (EU ETS)

● Revision of the regulation on land use, land use change and forestry (LULUCF)

● Revision of the effort sharing regulation (ESR)

● Amendment to the renewable energy directive (RED)

● Amendment to the energy efficiency directive (EED)

● Revision of the alternative fuels infrastructure directive (AFID)

● Amendment of the regulation setting CO2 emission standards for cars and vans

● Revision of the energy taxation directive

New legislative proposals:

● New EU forest strategy

● A carbon border adjustment mechanism (CBAM)

● A Climate Action Social Facility

● ReFuelEU Aviation – on sustainable aviation fuels

● FuelEU Maritime – on greening Europe’s maritime space

The Commission claims that this package will modernize the economy, stimulate innovation and provide a competitive advantage over other economies. But when politicians (especially EU politicians!) talk about innovation and competitiveness, alarm bells go off in my head.

A European planned economy and a display of lost faith in the free market

All aspects of our economy will be affected by this proposal. The European Commission is embarking on a risky venture in which it not only says ‘what’ should be done, but also ‘how’ it should be done. The government seizes the entrepreneur’s seat and consumers’ hands are guided with respect to their consumption behaviour. Fit-for-55 is an outright planned economy. Progress happens when creative entrepreneurs have the space to turn ideas into reality. Regulation follows innovation, not the other way around. That should be the guiding principle. What the package makes clear is that the European Commission has definitively lost its faith in the free market.

What does this mean for the climate?

The EU itself estimates that this increased ambition from 40% to 55% reduction of greenhouse gases compared to 1990 will cost 1,300 billion euros. However, according to the more realistic estimate of Bjørn Lomborg, the costs will amount to 4 to 5 thousand billion euros. If all EU targets are met, the final result will be an immeasurably small temperature reduction of just 0.04°C. Environment, nature and landscape will suffer major damage and there will be no sign of a temperature reduction.

The Commission’s climate plans are insanely expensive, will take away many of our freedoms and have next to no effect on the climate. Our economy is being put at risk with production costs and consumer prices rising sharply. If this new ‘green economy’ really is the revenue model the Commission believes it to be, we would not need all this legislation. There is a real danger that the competitive position of the countries within the EU will be damaged compared to China, the United States and also emerging economies such as India.

Nuclear power is the only option

Does that mean we should do nothing then? No, certainly not, we must continue what we were doing, which is investing responsibly in an even better future. Politicians may determine the real goals, but in a technologically neutral way. The execution should be left to the market. After all, every investment must be able to be recouped properly and subsidies should never become a permanent instrument. This applies to both energy generation and investments in insulation.

The proposed solutions must contribute to a better future, but the Commission continues to insist on biomass as a large component on the path to carbon neutrality. Complete forests go into the oven, which is at odds with the set goals. Trees absorb CO2 and are important for biodiversity. Combustion for energy generation also releases more CO2 and air pollution than gas. Wind turbines and solar meadows are not efficient, and generating energy in this way comes at the expense of nature, landscape and public health.

In fact, investing in nuclear energy is currently the only solution to phase out fossil fuels in the long term. Nuclear energy is reliable, has a high energy density and is therefore efficient, so that nature and landscape are spared. It also emits no air pollution at all and, contrary to what activists say, the waste is very manageable. France has proven this for decades.

But the Commission, with all its ambitious plans, has not yet included this form of energy generation in its taxonomy plans. As a result, there is no economic level playing field with respect to solar, wind energy and biomass.

Recently, two EU scientific councils published their conclusions on nuclear energy. In general, the reports confirm the previous conclusions of the Commission’s Joint Research Center (JRC) that nuclear energy is an important tool in phasing out fossil fuels and does not cause serious damage to the environment. This means it meets an important condition for being included in the taxonomy. Nuclear energy is also part of the solution in the IPCC scenarios, and NASA previously calculated that current nuclear energy has saved millions of lives because it has prevented air pollution.

Conclusion

In summary, all major success factors of our Western society are currently under pressure because of these Fit-for-55 plans. Free market forces are changing into a planned economy and energy generation is becoming less efficient and therefore more expensive for companies and consumers.

But the greatest danger lies in the threat to democracy. With this package of measures, citizens will no longer have any say in what our society should look like for the next 30 years. That has already been determined in the Berlaymont building. And that is eerily similar to the situation that the people of the former Soviet Union left behind 30 years ago.

Robert Roos worked for ten years as an employee in engineering and construction companies on big projects in the oil and gas industry and also in the infrastructure industry. Now as a Member of European Parliament, he sits on the Committee on Industry, Research and Energy. Roos is a Honorary Distinguished Fellow at the Gold Institute for International Strategy.

This Article first appeared in the American Spectator https://spectator.org/supreme-court-packing-democrats-stephen-breyer/)

By: John C. Wohlstetter

In a previous American Spectator article, “Dems to Supremes: Shape Up or Pack Up!,” I examined the lessons to be drawn from Franklin Roosevelt’s failed 1937 effort to pack the Supreme Court by raising the number of justices from nine to 15.

Roosevelt proposed that a new justice should be added for each sitting justice who is age 70 or older. Had Roosevelt been successful with his plan, the aging justices who blocked his New Deal programs would be nullified and the Court’s ideological balance would have shifted to the left.

FDR claimed that adding justices was all about lessening the justices’ workload. But court-packers today accept the real reason behind FDR’s plan: to change the Court’s ideological course. The motive FDR initially disclaimed, Democrats openly embrace.

Round Two: Court-Packing Redux

In 1937, Justice Owen Roberts, a swing justice appointed by Herbert Hoover in 1932, began providing narrow majorities that upheld New Deal legislation. Some have interpreted these rulings as clever political maneuvers that intentionally protected the Court’s integrity. And many believe that this judicial shift saved the Supreme Court from FDR’s court-packing plan. 

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These rulings include West Coast Hotel Company v. Parrish, which upheld Washington state’s minimum wage law for women, and Jones & Laughlin v. NLRB, which upheld the Wagner Labor Relations Act, a law that enacted broad federal protections for labor unions.

Both cases were decided 5-4. They marked the death knell of the Court’s doctrine of “substantive due process,” under which infringements upon freedom of contract were treated as violations of the Fifth Amendment’s Due Process clause.

The shift by Roberts gave rise to the famous quip about the Court’s volte-face: “the switch in time that saved nine.” And, a generation before that quip, there was Finley Peter Dunne’s Mr. Dooley (rendered in modern English): “No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”

The Left Resurrects the Court-Packing Plot

Democrats in recent years have tried to redefine “court-packing” as “court reform” so that it encompasses not only adding justices but also principles of constitutional and statutory jurisprudence. Proponents even chose a new weasel verb — “restructuring.” FDR had used “reorganization.”

This tactic draws from the practice of totalitarian countries that describe themselves as democratic people’s republics to blur the distinction between their dictatorships and genuinely free countries. This sanitizes their tyrannies — at least in the eyes of some observers.

In 2019, five senators filed an amicus brief in a gun regulation case in which they warned the Court that its rulings could undermine its “legitimacy.” And during the 2020 presidential campaign, Joe Biden was coy about whether or not he’d pack the Court, saying that he’d decide after the election. Most recently, Nancy Pelosi accused the conservative justices (plus Chief Justice John Roberts, a swing vote) of threatening voting rights.

For her part, Justice Ruth Bader Ginsburg said that nine was the correct number and that FDR was wrong to try to pack the Court. Justice Stephen Breyer has also come out — firmly — against repeating FDR’s effort.

The American Bar Association also issued serial declarations defending “judicial independence” in 1998, 2005, 2017, 2018, and<a href=”https://www.americanbar.org/news/abanews/aba-news-archives/2019/08/annual-2019–panel-to-address-so-called-judges–other-attacks-on/”> 2019. From these, collectively, come twin takeaways. First, as Justice Sandra Day O’Connor said, “Criticism is fine, but retaliation and intimidation are not.” Second, the 1998 document sees a difference between “intemperate criticism” of a judge’s decision versus a “political” threat to impeach a judge if a case is not decided “favorably.” The former is undesirable; the latter is indefensible.</a>

Donald Trump has pilloried the Court, often intemperately, for which most of the media and their allies in law and academia have lambasted him. But with today’s media, Pelosi and the Democrats get a pass for their attacks on the Court. 

Round Three: Justices and Some Long Goodbyes

Apologies to Raymond Chandler, whose detective story The Long Goodbye features all sorts of skullduggery not to be found on the more mundane lives of America’s 115 justices (17 have served as chief justice). They are frequently in no hurry to leave the bench. In one of the neatest tales from Court annals, one justice, Charles Evans Hughes, was appointed twice. He was first appointed by William Howard Taft in 1910 as associate justice and stepped down in 1916 to run for president. After serving as secretary of state under Warren Harding, Hughes returned to the Court in 1930 as chief justice, appointed by Herbert Hoover. He replaced Taft, who had originally appointed him in 1910; he voluntarily stepped down in 1941 at age 79, albeit in full possession of his faculties, and died at age 86 in 1948. Though appointed twice, he is counted only once in the total number of justices, as are several others who served as associate justice and were subsequently appointed chief justice.

Alas, not all justices have chosen to “go gentle into that good night” of serene retirement. As told in law processor Henry Abraham’s superb 1999 book, Justices, Presidents and Senators, several cases have offered backstage — and at times front stage — drama. Genuinely poignant are the interleaved stories of Justices Robert Grier and Stephen Field. Appointed in 1846 by James Polk, Grier reluctantly retired in 1870, shortly before his death, age 76, later that year. Field, appointed by Honest Abe in 1863, had been tasked in 1869 by his fellow justices with a melancholy errand: approach the senile Grier to tell him that his time had passed. Shortly after, Grier assented. Then in 1897, Field was no longer able to serve. In his senescence, he found himself being asked to retire by John Marshall Harlan Sr. But Field refused, exclaiming, “Yes, and a dirtier day’s work I never did in my life!” But nine months later, Field succumbed to the inevitable and died two years later.

The next major impasse came with Justice William O. Douglas, who was appointed by FDR in 1939 and was the last justice born in the 19th century (1898). The end drew nigh when Douglas suffered a massive stroke on the last day of 1974, rendering him partially paralyzed and also mentally debilitated. Seven of his eight fellow justices agreed to postpone major cases until Douglas departed. It took former Justice Abe Fortas to persuade Douglas to make his exit in the middle of the Court’s fall 1975 term. At 36 years, Douglas remains the longest-serving justice; he died in 1980.

Democrats Look to Manipulate the Court

This brings us to the drama surrounding the late Justice Ruth Bader Ginsburg. Born in 1933 and appointed by Bill Clinton in 1993, RBG endured numerous bouts with cancer, radiation, and chemotherapy. She died on September 18, 2020, 47 days before the November 4 election. During the Obama years, she was repeatedly approached and asked to retire so that a Democratic president could appoint a younger left-wing justice. Even after a meeting with the president, she demurred, reportedly stating that the Republicans would filibuster any Obama replacement and that her goal was to serve to age 90, as had her fellow jurist, Justice John Paul Stevens. No one spoke of this publicly, however. RBG was also caught falling asleep during oral arguments, which was ignored in the mainstream press.

In 2013, then-Senate Majority Leader Harry Reid exercised the infamous “nuclear option” by amending Senate Rule 22 so that nominations to the federal district and appeals courts could not be filibustered; the Supreme Court was exempted, as no vacancies had occurred. Democrats got a taste of their own medicine when, in 2017, Republicans amended Rule 22 to end the filibuster for the High Court, enabling Trump to appoint three justices during his presidency. 

Mindful of the debacle caused by Ginsburg’s perceived obstinacy, voices on the left are calling publicly for Breyer to retire while a Democrat occupies the Oval Office. Had he wished to do so this year, he’d have announced by the Court’s last day, July 2, to give enough time for the administration to put a replacement on the Court in time for the October 4 start of the Court’s fall term. If anyone still harbored hopes that Breyer would step down, he<a href=”https://www.msn.com/en-us/money/companies/breyer-hires-four-law-clerks-for-next-term-high-court-confirms/ar-AALI77a”> just hired his four law clerks for the Court’s full 2021–22 term.</a>

So Breyer’s hinge point moments will be at the end of the Court’s first 2022 term or first 2024 term, before the fall elections in those years. But Breyer is now an incredibly influential justice. As a moderate liberal, he is better positioned to appeal for votes from the other justices than are the strongly progressive Kagan and Sotomayor.

Bottom Line

Expect Justice Breyer to stay for the foreseeable future. Breyer relishes his station, one that gives him vast influence in American life. Justices often wield far more power than any member of Congress, and in some cases have proven even more influential than presidents.

Doubtless Breyer will be apprised as July 2022 draws near as to what the odds appear to be for a GOP takeover of the Senate. And if he stays, a similar assessment will be made in 2024. But if Ginsburg, a far more ideological justice than Breyer has been, and one in failing health to boot, refused to step down, one should not make a book that Breyer, if his health holds, will step down in either year.

Put plainly, Justice Breyer has said publicly — and avowedly means — that law is what guides him, not partisan politics.

(This article first appeared in the American Spectator Magazine: https://spectator.org/supreme-court-packing/)

President Joe Biden’s tirade against a Supreme Court decision that didn’t go his way elevates the future of the Court to a new level of intensity and, hence, political priority.

Let’s begin with the president’s July 1 tweet reacting to the Court’s Arizona election law ruling:

Today’s decision by the Supreme Court undercuts voting rights in this country — and makes it all the more crucial to pass the For the People Act and the John Lewis Voting Rights Act to restore and expand voting rights protection.

On its face, the tweet simply criticizes the Court’s decision. But in the context of calls from senior Democrats to pack the Court unless it mends its ways, it translates into calling for rulings that conform to Democratic Party goals.

The Democrats aim to add justices to shift the Court’s balance leftward to erase the current conservative majority. Consider Sen. Chuck Schumer’s blatant 2020 threat warning the Supreme Court justices ahead of a decision on a Louisiana abortion case which tested Roe v. Wade.

I wanna tell you Gorsuch, I wanna tell you Kavanaugh, you have released the whirlwind and will pay the price, you won’t know what hit you if you go forward with these awful decisions.

Then there are two inappropriate intrusions by President Barack Obama: his 2010 attack on the Court’s free-speech ruling in the Citizens United case during his State of the Union address and his 2012 veiled warning to the Court in advance of its decision on Obamacare to not engage in “judicial activism.”

To her (rare) credit, House Speaker Nancy Pelosi has stopped the House from considering court-packing legislation. But Sen. Sheldon Whitehouse, who sits on the Judiciary Committee — and who, one hopes, never is elected to the Oval Office — bragged that his 2020 attack on Amy Coney Barrett during her confirmation hearing might have saved Obamacare, which was upheld in June. The none-too-subtle senator crowed, “If we hadn’t done that, maybe they would have” killed the law. “It may be [saved],” he added, “because we did so many warnings.”

Round One: FDR’s 1937 Court-Packing Debacle

The predicate for examining the 2021 court-packing debate is to review its infamous 1937 historical antecedent. The late Chief Justice William Rehnquist devoted an entire chapter in his 1987 book The Supreme Court: How It Was, How It Is to Franklin Roosevelt’s failed 1937 attempt to pack the bench.

Rehnquist set the stage for the first and so far only attempt to pack the Court by noting that in the 72 years from 1861 to 1933 — 18 presidential terms — Republicans controlled the White House for 56 years, excepting only Andrew Johnson (1865–69) Grover Cleveland (1885–89 and 1893–97), and Woodrow Wilson (1913–21). FDR then served continuously from 1933 until his death in 1945, just shy of three months into his fourth term.

FDR’s power reached its apex after his 1936 landslide over Alf Landon, who carried only his native Vermont and Maine. In addition to winning 46 states, FDR brought his party to epic heights in the House and Senate. Democrats began 1937 holding a 333-89 edge in the House and a 76-18 edge in the 96-seat Senate.

During FDR’s first term, three Court decisions landed the Supremes in hot water with the administration and its allies in Congress. The Supreme Court decided these cases on what New Dealers called Black Monday (May 27, 1935).

The first case, Humphrey’s Executor v. U.S., involved FDR’s attempt to remove a member of the Federal Trade Commission, whose members are confirmed by the Senate. The Court held that the president lacked the power to do so.

The second case, Louisiana Joint Stock Land Bank v. Radford, involved a complex mortgage security interest the bank held on a farmer’s property and sought to take much of the property without paying “just compensation” per the Fifth Amendment. Rehnquist summarized the holding: “[H]owever great the urgencies created by the farm depression, Congress could not deprive the mortgage holder of so much of his security without paying compensation for it.”

In the third case, Schechter Poultry Corp. v. U.S., the Court struck down the National Industrial Recovery Act, thus invalidating the jewel in the New Deal crown. It held that Congress could not delegate its legislative authority in full to administrative agencies (the “non-delegation doctrine”).

But the proverbial judicial straw that finally broke the presidential camel’s back was the January 1936 Court decision U.S. v. Butler. The Court struck down the Agricultural Adjustment Act as an unconstitutional use of the federal taxing power to invade regulatory provinces ceded by the Constitution to the states.

FDR’s first version of his plan, unveiled February 5, 1937, would have added one new seat for each sitting justice over 70 — then six of the nine members of the Court — who did not elect to retire before the plan became law. At the time, there were four conservative justices, collectively termed by their critics “the four horsemen” (of the judicial apocalypse): Willis Van Devanter, George Sutherland, and Pierce Butler. Three justices were liberals: Louis Brandeis, Harlan Stone, and Benjamin Cardozo. Two justices were considered “swing” votes, both appointed by Hoover: Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts.

FDR justified his court-packing plan on the age of the justices and their alleged inability to meet the Court workload. That flopped in the press — then mostly anti-FDR — with major papers controlled by what the blue-blood FDR termed “economic royalists.”

Chief Justice Charles Evans Hughes issued a letter, co-signed by justices Brandeis and Van Devanter, in which he vehemently denied that the Court could not handle its workload. One top FDR adviser, Robert H. Jackson, later said that this letter doomed FDR’s packing plan.

As Rehnquist recounts, the administration planned to start in the House of Representatives (where most legislation is supposed to originate) because its members are up for reelection every two years, and thus a popular president could put tremendous pressure on members to vote his way on major issues. But the House Judiciary Committee chairman, Hatton Sumners of Texas, was adamantly opposed to any plan to pack the Court, telling colleagues, “Boys, here’s where I cash in.”

Republicans in the Senate opposed FDR’s plan, but they remained silent, fearing that if the packing plan was viewed as a partisan issue it would turn out like the 1936 Democratic landslide. The Senate Majority Leader, Joe Robinson of Arkansas, would manage the legislative effort on behalf of FDR. The Democratic opposition in the Senate was led by Burton Wheeler, a gilt-edged progressive who had ardently campaigned for FDR in 1936, having supported the latter’s first-term accomplishments.

As opposition grew to FDR’s original scheme, Justice Van Devanter announced his retirement on May 18, some six weeks before the end of the Court’s first 1937 term. And on July 2, FDR unveiled a revised plan, having been told that there were not enough votes in the Senate to pass his first version. The age at which an additional justice would be added to the Court was raised to 75 with a limit of one new justice per year. Rehnquist notes that this was a minimal retreat. Given one appointment each in 1937 and 1938 plus replacing Van Devanter, FDR would have put three new justices on the Court within the first year.

Matters came to a head in mid-July when Joe Robinson dropped dead of heart failure. With some senators having personally pledged to Robinson that they would support the bill, the plan was dead upon his demise. The final Senate vote to recommit the bill was 70-20.

Rehnquist adds that supporters of the plan took a “lose a battle, win the war” view in that within four years FDR had replaced six of the nine justices. In all, FDR put eight justices on the bench.

Bottom Line: In light of her intense partisanship, Nancy Pelosi’s decision to avoid court-packing may fairly be termed astute political calculation. But it still goes into the record books. Comparing 1937 to the last decade’s assaults, what emerges most clearly is that (a) Democrats seem more united today than in 1937 in favoring court-packing, and (b) the dominant media has switched sides, from overwhelmingly opposing FDR’s plan to favoring or leaning towards such a move.

Rounds two (today’s court-packing) and three (calls on Justice Stephen Breyer to retire) will be covered in a second article.

The Gold Institute for International Strategy deplores the actions of the PYD (Partiya Yekîtiya Demokrat – Democratic Union Party) on June 20th, in closing the offices of Kurdistan 24, the premiere source of information from all regions of Greater Kurdistan.

The measure, taken without notice or explanation, casts doubts on the commitment of the administration of Rojava to elemental freedoms, the very freedoms the Kurdish people have fought tirelessly for decades to obtain.

Indeed, this is the second time the offices of Kurdistan24 have been closed, despite the PYD’s assurances that it seeks a “democratic solution that includes the recognition of cultural, national and political rights, and develops and enhances their peaceful struggle to be able to govern themselves in a multicultural, democratic society” for Rojava. Censorship of the press and persecution of ideas does not seem the proper vehicle to reach those lofty goals.

Around the world, many look to Kurdistan 24 to obtain first hand, unbiased reporting of events in all four Kurdistan regions in Syria, Iraq, Iran and Turkey, and we view its censorship as a troubling development, made more serious by the subsequent closing of the Semalka border crossing.

We hope that these ominous events do not herald a new era of authoritarianism returning to the Autonomous Administration of North and East Syria and look forward to the free society Syrian Kurds have fought so valiantly to obtain.