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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Twenty-Fifth Amendment
(8 of 8)
Box: 56
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
VABHIIGTON
25th tile
July 16, 1985
MEMORANDUM FOR COUNSEL'S STAFF
FROM:
HUGH HEWITT
SUBJECT:
Draft Op-Ed Op on Twenty-Fifth Amendment
Attached is the draft we discussed this morning. I welcome all
comments, attacks, asides and motions to quash.
Attachment
DRAFT
OP-ED ON TWENTY-FIFTH AMENDMENT
"Full disclosure" is more than the title of a novel that Bill
Safire enjoys citing as evidence of his constitutional expertise.
NOT
It is also a concept of public accountability, one that grows in
IN
importance at a time when the President is ailing.
LEZAL
AREA
It is also a demand that fairly rolls off the collective tongue of
the nation's press corps when a President enters the hospital.
Because the press demands the information, the White House staff
dutifully produces every detail of the President's medical treat-
ment. I doubt the public cares about these details. The vast
majority probably agree with me that they are an unseemly intrusion
into the President's privacy. But once the media has made the
demand for full disclosure, anything less than the complete drill
would arouse suspicion and possibly panic. So full, indeed, over-
flowing disclosure of the details of the President's health,
schedule, attitude and thoughts has become the rule.
I was surprised then when so many in the media took issue with the
President's letter invoking the Twenty-Fifth Amendment prior to his
recent surgery. The letter was a carefully written document that
fully reflected the President's thinking concerning the procedures
he was employing.
Mr. Safire was quick to label this effort to be candid as a "legal-
istic flimflam. George Will suggested that the President acted
with "an obvious reluctance." The New York Times labelled it a
"curious reluctance, and Time remarked that the letter was "a
deliberately vague attempt to accomplish the purpose of the amend-
ment without formally invoking it." What we have here is not a
failure to communicate, but a new twist on the media's demand for a
story. These commentators did not want full disclosure of the
President's view of the ambiguities surrounding the intended
applications of this Amendment. They preferred drama. They wanted
terse statements and oral declarations. They wanted "film at
eleven."
What they got was a thoughtful letter on a difficult subject of
?
constitutional law. The President volunteered this discussion.
There was no requirement that he disclose the transfer prior to his
surgery. Indeed, from a standpoint of national security which the
commentators are currently huddled around, there are good arguments
never to reveal when a transfer has been effected.
But the President chose to level with the public. What he told
them was completely accurate: "I am mindful of the provisions of
Section 3 of the 25th Amendment to the Constitution, and of the
uncertainties of its application to such brief and temporary
periods of incapacity. I do not believe that the drafters of this
2
Amendment intended its application to situations such as the
instant one." Nevertheless, Section 3 of the Amendment vests total
discretion in the President and, despite the ambiguity of the
legislative history, he chose to use the transfer provisions. That
was full disclosure of the President's view. The legislative
history is vague. That was his conclusion then, and it remains my
conclusion now.
Former Senator Birch Bayh made the talk-show rounds following
Saturday's temporary transfer. He was of the opinion that the
Amendment was designed for this kind of event. Two decades ago,
when the Amendment was being framed, he was not so sure: "The
President may," he said in 1963, "be about to undergo surgery and
the domestic and the world situation at that time may demand no
interruption --even for a day or two --of Executive leadership."
Notice reliance on the word "may" and on the state of the world.
When drawing up the Amendment the Senator was very cautious about
suggesting when its invocation would be appropriate. That caution
was laudatory. It is unfortunate that it is being quickly aban-
doned today.
The President wrote the letter he did because he is aware of how
every day of every Presidency is unique. Having just presided over
the successful resolution of a hostage situation, he was keenly
aware of how shallow are comparisons between events present and
those past. He realized that while the Twenty-Fifth Amendment was
appropriate on Saturday, July 13, 1985, it may not ever again be
appropriate and he wished to extend a little assistance to his
successors who may be confronted by the accusation: "But Reagan did
it."
Those who write words that are assured of no immediate consequence
casually disregarded the President's assertion of non-precedent.
"A conscious President, before a major operation, must declare his
Vice President to be Acting President" wrote Mr. Safire.
"[Reagan's] example was in the national interest and should be the
standard observed by all who hold the office" opined The Washington
Post. The New York Times agreed: "[T]he procedure should become
routine on similar occasions." These are quite simply wildly
irresponsible statements that purport to know a rule of policy for
all ages. Even the self-appointed panjandrum of constitutional
pundits, Mr. Safire, ought to see the danger in purporting to bind
all Presidents to a particular course of action. Folks can be
excused some silly arguments, especially columnists, but not when
they have set themselves up as experts.
Representative Dick Cheney was the most astute of the observers
when he recognized in the President's letter the historical
"tendency in the Oval Office and among the staff to try to preserve
options for future Presidents. You want to avoid taking steps that
in the future might in fact place constraints that would be unwise
or unnecessary on future Presidents."
3
What do we know? First, that those who framed the language of this
Amendment did not devote much time to the question of the Amend-
ment's applicability to periods of unconsciousness during surgery.
Some, like then former Vice President Nixon, testified that seven
minutes was too long a period of inability. Others, like Senator
Bayh, argued that no rules could be laid down and that it would
inevitably be a question the answer to which depended on the
circumstances. The great majority of those who testified on the
law did not speak to the question and focused instead on Wilson and
Garfield-like periods of extended disability, a focus that itself
discounts the notion that brief periods of anesthesia were covered
by Article 3.
We know as well that this President and this Vice President are an
extraordinarily well-matched team and that no one doubted the
wisdom of the Vice President serving as Acting President. But we
also know that a Jefferson considering a Burr, or FDR viewing Henry
Wallace or John Nance Garner, might not have been comfortable with
such an amendment, orathat a President may someday arrive at the
Za
hospital with the Vice-Presidency vacant and the Speaker of the
House of the opposite party Can anyone presume to argue the
correct response in all these cases?
Many have indulged that presumption. Unhappily, this may be the
first level of casual journalism that over the years hardens into
accepted wisdom. It is said that bad journalism like a bad haircut
will disappear with time unless you try to fix it yourself. That
is excellent advice for controversies that are of a kind that recur
regularly. It is the fortunate infrequency of occurrences like the
President's surgery that argues for a full discussion of the event
at the time it occurs. When and if it comes to pass that a future
President is under pressure to invoke the Amendment and the scribes
are clutching the conclusions of their ancestral editors, I hope
someone will at least consult the record of what President Reagan
did on July 13, 1985. He used the Twenty-Fifth Amendment on one
occasion, and did not demand its use at any time in the future. He
doubted that those who wrote the Amendment and the states that
ratified it attempted to decide the issue of a few hours worth of
anesthesia. And he was certain that the only person capable of
deciding the issue, should it arise again, will be the incumbent.
THE WHITE HOUSE
WASHINGTON
July 17, 1985
MEMORANDUM FOR HUGH HEWITT
FROM:
JOHN G. ROBERTS JJR
SUBJECT:
Draft Op-ed on the
Twenty-Fifth Amendment
Your well-written draft has not dissuaded me from my view
that we should not respond to Safire's intemperate essay.
The "full disclosure" theme is a clever effort to hoist
Safire and other journalistic critics on their own petard,
but I do not think we can embrace the principle in defense
of our actions. The core of our profession is the privileged
nature of attorney-client communications, and we spend much
of our time protecting from disclosure the advice given the
President by his advisers. We did not in fact draft the
letter simply because we thought there should be full
disclosure of the legal ambiguities, but because we wanted
to take advantage of those ambiguities to minimize prece-
dential impact. Safire and most others would recognize that
the full disclosure argument is simply a post hoc rationali-
zation. (The second sentence of the second paragraph is not
quite correct. Among other things, we have not disclosed
and do not intend to disclose the actual pathology report.)
The arguments that are sound are that (1) it is not clear
that the 25th Amendment applies in cases such as this, and
(2) the President did not want to bind his successors.
Those points are made in the letter itself, which will of
course be of some help to any future President (or even this
one) confronted with a similar situation in the future.
I have a technical concern with respect to the scenario in
the penultimate paragraph "that a President may someday
arrive at the hospital with the Vice-Presidency vacant and
the Speaker of the House of the opposite party." I do not
think the 25th Amendment would be available in such a
situation. The Amendment authorizes transfer of authority
only to a Vice President. There is no means by which a
Speaker succeeds to the office of Vice President. Section 2
specifies the manner in which a vacancy in the office of
Vice President is filled -- not by succession of the
Speaker, but my nomination and confirmation by a majority of
both Houses. Pursuant to 3 U.S.C. § 19, the Speaker acts as
President when "by reason of death, resignation, removal
from office, inability, or failure to qualify, there is
- 2 -
neither a President nor Vice President to discharge the
powers and duties of the office of President" (emphasis
supplied).
In the scenario you describe, the President could not
transfer authority to the Speaker under the 25th Amendment.
If any constitutionally authorized transfer is to take
place, the Speaker would have to resign his seat and take
the oath to act as President under 3 U.S.C. § 19. His
authority would terminate with the removal of the Presi-
dent's inability, 3 U.S.C. § 19 (c) (2).
If your point is not that the President may be in a position
to transfer authority to the Speaker, but that the Speaker
may feel obligated to assume Presidential power because
"inability" in 3 U.S.C. § 19 and "unable to discharge the
powers and duties" of the Presidency in the 25th Amendment
should be interpreted identically, I disagree with the
assumption, and think the argument is too elaborate in this
context in any event.
Again, I think the draft is very well written, but would
prefer to let the letter speak for itself.
cc: Richard A. Hauser
History in the Making as Quietly as Possible
Sometimes historic moments are less than momentous for
The Reagan cancer operation thus presented almost a
those who act them out. For three hours or so, Vice President
classic collision between the objectives of those who cover
George Bush and three members of his staff sat around in the
the presidency and those who manage it. The news of the
study of his Washington residence drinking Cokes, eating
President's malignancy is a story of the first magnitude, both
popcorn and chatting. Later, three friends came over and
domestically and internationally, and the press quite justifi-
joined Bush in a Saturday afternoon game of tennis. Soon
ably has pulled out all the stops by covering it in detail.
afterwards, the phone rang and a precedent-shattering inter-
With equal justification, however, Reagan's aides have
lude in U.S. history had ended.
made every effort to assure that as nearly as possible, the
During eight hours of utterly mundane activity-for
routine of the White House continues uninterrupted and to
which he had flown back from his summer home in
convince the public that the President's prognosis is favor-
Kennebunkport, Maine-Bush was empowered by a letter
signed by President Reagan to discharge the "constitutional
duties and powers of the office of the President of the United
States." He was the first Vice President ever to receive such
White House
a temporary transfer of authority.
BY DICK KIRSCHTEN
"I don't think the subject of its being a precedent ever
came up," said Bush's press secretary, Marlin M. Fitzwater,
able and that he is in full control of his faculties and his job.
one of those who munched popcorn and made small talk with
To minimize public concern, for example, the White
the Vice President during the hours that Reagan was under-
House did not mention in advance the plans for voluntarily
going surgery for the removal of an intestinal growth that
transferring power to Bush on a temporary basis. The Vice
subsequently was determined to be cancerous.
President's return to Washington was initially announced as
Instead, the conversation centered on the President's oper-
a matter of personal concern. Copies of the historic transfer
ation, with Bush's staff physician, Air Force Maj. Robert A.
letter were made available to the press at 12:19 P.M.
Gasser Jr., explaining what was going on. When word came
Saturday, almost an hour after Reagan's surgery had begun
shortly before 3 P.M. that the surgery had been completed,
and Bush had arrived back in Washington and been notified
Fitzwater, Gasser and vice presidential chief of staff Craig
that the President was under anesthesia.
L. Fuller left the Bush residence. At about 7:30, White
And chief of staff Regan was on hand in the recovery room
House chief of staff Donald T. Regan telephoned Bush to
at 7:22 P.M. to get the President's signature on the letter
inform him that the President, eight minutes earlier, had
resuming the powers of his office at the earliest possible
signed a letter resuming the full powers of his office that he
time. This time there was no hesitation in letting the news
had temporarily relinquished as of the time he went under
media know that the shift of authority had quickly ended.
anesthesia-about 11:30 A.M. In the intervening time, ac-
At times like this, the "larger than life" grandeur of the
cording to Fitzwater, Bush had performed no official duties.
office-which often assists a President in swaying public
The Bush vignette illustrates the sometimes surrealistic
opinion-becomes an absolute encumbrance. Mere rumors,
atmosphere that surrounds the highest office of a nation as
let alone hard news, of a presidential disability can spook
mighty as the United States. The potential power of the
stock markets and currency speculators. Accordingly, the
office-right up to fateful control of the nuclear button-is
Reagan White House was adhering to standard operating
truly awesome. The implications of holding that power are of
procedure when it waited until 4 P.M., after the markets had
enormous significance worldwide, and the news media treat
closed, to begin the July 15 press conference disclosing that
them accordingly.
the growth removed from the President was cancerous.
However, for the custodians of that authority, prudence
It also becomes important to deglamorize the President's
dictates that a great effort be made to exude calmness.
role just a bit, to shift gears and place a bit more stress on the
continuity and certainty. From the White House point of
role of staffers in the day-to-day decision-making process. In
view, it is of exceeding importance to play down news that
this way, it can be argued that the management of White
could create negative speculation about the steadiness of the
House affairs is preceding apace, even though the President
hand at the helm.
may have held but a single half-hour staff meeting.
1694 NATIONAL JOURNAL 7/20/85
As Aides Stage-Manage Postoperative News
Thus, on the day following the announcement that cancer
In his book, Straight Stuff (William Morrow and Co.,
had been found in the tissue removed from the President,
1984), James Deakin, a longtime White House reporter for
White House press spokesman Larry Speakes began his mid-
the St. Louis Post-Dispatch who now teaches journalism at
day briefing with a "presidentially approved" statement
George Washington University, chronicled the three epi-
commenting in great detail about the lack of progress to date
sodes during the Eisenhower presidency in which the Presi-
in U.S.-Soviet arms reductions talks and expressing hope
dent was unconscious and incapacitated and the failure to
that the Soviets will be "more forthcoming" as a new round
transfer power, in effect, left nobody in charge of the
in the talks gets under way. He also announced the dispatch-
country's affairs for brief periods.
ing of a 10-man White House advance team to begin the
In an interview, Deakin pointed out that it never has been
logistical planning for Reagan's scheduled meeting with
easy for Vice Presidents to take charge. In 1841, John Tyler
Soviet leader Mikhail Gorbachev in November. And he said
became the first Vice President to succeed to the Oval Office
that Regan had relayed a strong exhortation from the Presi-
upon the death of a President (William Henry Harrison). But
dent to congressional leaders to reach a budget agreement.
even he had trouble exercising power at first because power-
The go-ahead for these announcements. Speakes said, had
ful congressional leaders attempted to limit his authority by
been given by the President to Regan during a 25-minute
referring to him as "acting President." Tyler eventually won
meeting from 10:55-11:20 that morning at the Bethesda
the war of nerves with Congress by refusing to accept any
Naval Hospital. Under questioning. Speakes said that the
communications addressed to him as acting President,
text of the statement on arms control progress was drafted
Deakin noted.
after Regan's meeting at the hospital and that the President
With that issue resolved, the next problem arose when the
hadn't seen or needed to see the actual wording.
nation experienced incidents in which incapacitated Presi-
Speakes also worked hard to lightly brush aside questions
dents remained in office for long periods of time. President
probing the extent of the President's discomfort, disability
Garfield lived for 80 days after he was shot in 1881.
and most of all his emotional reaction to the news that he had
President Wilson was struck down by illness in 1919 and
had a cancerous growth. The gist of the press spokesman's
never fully recovered. Until 1921, Wilson's wife exercised
responses was that the President does not share the news
considerable presidential power. And. as Deakin points out,
media's morbid preoccupation with such subjects. To those
Wilson's Vice President, Thomas R. Marshall, resolutely
who questioned a report that Reagan discussed the cancer
resisted all urgings that he assert authority.
finding with his doctors for only five minutes, Speakes
After his heart attack in 1955 and ileitis operation in 1956,
replied: "Ronald Reagan is not one to dwell upon anything
President Eisenhower entered into an unofficial understand-
like that. He has an optimistic and enthusiastic attitude.
ing with his Vice President, Richard M. Nixon, regarding
His approach is, 'Let's get back to the business at hand.'
presidential powers. But that agreement was not acted on
But there will be few admissions from the White House
when Eisenhower suffered a stroke in 1957. The same was
during the week to 10 days of Reagan's expected convales-
true when President Johnson underwent gall bladder surgery
cence that the business at hand was ever set back by the
in 1965 and throat polyp surgery in 1966.
President's absence from the Oval Office. And while the
Ratification of the 25th Amendment to the Constitution in
news media remain preoccupied with the President's medical
1967 presumably resolved the problem. It spells out proce-
condition, the business of the White House staff will be to
dures whereby a President can voluntarily transfer power
minimize the gravity of their boss's illness and emphasize the
temporarily and also establishes procedures for certifying
relatively mundane nature of the ongoing White House
that a President is incapacitated in case of instances where
routine.
he refuses or is unable to act.
Reagan and his aides, however, refused to invoke the 25th
Amendment in executing the brief transfer of authority to
Although nothing of note happened during Bush's eight-hour
Bush. The letter signed by Reagan "carefully avoids setting a
reign with presidential authority, the question of what a Vice
precedent," said a top White House official who briefed
President might do has been a bothersome one throughout
reporters on the subject. "So you would just have to say this
American history.
involves a 25th Amendment-like turnover of powers."
NATIONAL JOURNAL 7/20/85 1695
THE WHITE HOUSE
WASHINGTON
July 29, 1985
MEMORANDUM FOR DONALD T. REGAN
ROBERT C. MCFARLANE
LARRY M. SPEAKES
DAVID L. CHEW
RICHARD A. HAUSER
ALFRED H. KINGON
CRAIG L. FULLER
MATTHEW P. CAULFIELD
BOYDEN C. GRAY
DONALD GREGG
PAUL B. THOMPSON
FROM:
FRED F. FIELDING Orig. signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Review of Twenty-Fifth Amendment Procedures
The President's use of Section 3 of the Twenty-Fifth Amendment was
accomplished without any unanticipated difficulties. Despite the
long-range planning that preceded use of Section 3, however, some
questions arose before, during, and following the temporary trans-
fer of power. I believe that while events are still fresh in
everyone's mind, it would be useful to review these questions and
to discuss all aspects of the transfer. I invite you and/or an
appropriate member of your staff to join me in the Roosevelt Room
on Friday, August 2, at 10:00 a.m., for what I anticipate will be
no longer than an hour-long discussion and review.
In anticipation of this meeting, if you had any particular
questions/issues that arose, it would be helpful to have them in
advance to frame the agenda for this meeting.
Thank you.
FFF/HH: jmk
cc: FFFielding
WHewitt
subject
chron.
MONDAY, JULY 15, 1985
A19
ESSAY William-Safire
Taking the 25th
WASHINGTON
T
he.opportunity to strengthen one
of the glories of the American
constitutional system - that
Why the
sense of stability that comes from
strict adherence to the law in times of
legalistic
peril was botched again by Fred
Fielding, the White House counsel,
flimflam?
and Attorney General Ed Meese.
The 25th Amendment to the Consti-
tution, dealing with a President's in-
ability to function, was ratified by the
Why this legalistic flimflam? One
states 20 years ago. The main purpose
reason that will be put forward is that
of its third section, setting forth the
he did not want to unduly alarm any-
method a President should use to de-
one (as if cutting out a third of your
Douglas Florian
volve his power temporarily upon the
large intestine to avert cancer was
Vice President, is plain: to provide
not alarming, or that following the
the nation with unbroken decision-
Constitution would be alarming).
making power, so that nobody will be
Another specious excuse for this
tempted by the prospect of retalia-
constitutional myopia is that any
While the banks earn market inter-
tory paralysis to launch a nuclear
brief transfer of power during a
est rates on the held funds, their poli-
strike.
major operation would lead to trivial
cies impose unfair and inconvenient
Every other decision can be post-
demands for such transfers during
restrictions on all consumers. Not
poned a day or a week; no need exists
dental work or afternoon naps. That
only is access denied, but consumers
for a formal transfer of power in an
is pure monsense; the Kremlin need
are subjected to overdraft charges
emergency. In practical terms, the
not be notified when the President
main reason for that addition to our na-
plans to have a tooth pulled.
ranging as high as $30 per check for
tion's fundamental law is to advertise
Underlying the President's fear of
checks written on held funds.
The large percentage of Americans
our ability to respond immediately.
admitting his requirement to obey
This section was tailor-made for
Section 3 in an emergency, I think, is
who live from paycheck to paycheck
the situation that confronted the
the fear of having to deal with its
bear an even heavier burden. With no
President and his legal advisers last
pressure to declare inability for a
cushion of funds to meet their living
week. A President, in full possession
longer period. Someday a President
expenses and protect them from over-
of mental and physical faculties, de-
will be faced with a debilitating
draft charges, they may be precluded
cided to go ahead with a major opera-
physical or mental ailment, and will
from using checking accounts entire-
tion. The whole world knew, as it
find tempting an option that is short
ly.
should, the time of the operation and
of resignation.
Public outrage has been swelling
the approximate length of time the
Digging one layer below that, in
for years, and yet no penalties or
President would be unconscious. That
seeking the motive for last week's
prohibitions have been imposed on
was the time of danger to the nation
curious refusal to admit precedent,
the banks. Despite Congressional
that Section 3.was created to avert.
we find the inherent threat to Presi-
prodding, neither the banking indus-
What did this President do? In a
dents of Section 4: the involuntary re-
try nor Federal Government regula-
moment calling for absolute clarity,
moval of an incapacitated executive
tors have taken any action. In fact,
be acted with deliberate fuzziness;
by his Cabinet, possibly even over his
the Federal regulators of financial
rather than clothe the nation in the
objections, with the matter of author-
institutions have pre-empted at-
newest armor of the Constitution, he
ity left for Congress to decide. (I
tempts by state governments to
chose to begrudge the transmission of
wrote a novel a few years ago about
solve this problem. Federally char-
his responsibilities and in the process
usurpation under the 25th Amend-
tered banks can simply ignore state
confused everyone.
ment, and suddenly the prospect
consumer protection, and state-
He followed the law's procedures
seems less remote.)
chartered banks need only switch to
but challenged its premises. In the
The Reagan staff had a brush with
the Federal charter.
letter to Congress prepared for him
'the need to consider Section 4 after
Various bills have been introduced
by his uncertain legal trumpeters, be
his shooting, and responded wrongly
in Congress this year to limit these
properly declared his anticipated in-
by not even considering the matter in
practices. The one offering the most
ability to discharge his powers and
formal Cabinet session; one would
protection would shorten the maxi-
duties, but then wrote of "the uncer-
think that previous failure in that
mum time that a financial institution
tainties of its application to such brief
case would have readied them for
may hold a check to one to three days,
and temporary periods of incapacity"
proper response in "the instant one."
and concluded: "I do not believe that
depending upon the category of
But Mr. Reagan was ready only to
the drafters of this amendment in-
check, with exceptions for checks
be ambivalent, obeying the law while
that present a high risk of loss to the
tended its application to situations
pretending he did not have to. He con-
such as the instant one."
fused yesterday's executive preroga-
institution of deposit. The fact that
Protesting that he was not setting a
tive with today's constitutional re-
many banks already meet these
precedent (which of course he was),
quirement.
limits demonstrates that these cell-
Mr. Reagan then obeyed the law. His
A conscious President, before a
ings are not unreasonable.
spokesman, asked if the Vice President
major operation, must declare his
Only through federally mandated
had become Acting President, the title
Vice President to be Acting Presi-
ceilings will all consumers be assured
used in the amendment, was left twist-
dent. When he comes to, the elected
of fair treatment. We're told that peo-
ing in the wind. He would not answer,
Chief Executive can reassume power
ple listen when E.F. Hutton talks. It's
thus refusing on behalf of the President
by invoking the immortal words of
time that Congress listened as atten-
and his legal advisers to admit that the
the Reagan Precedent: "Gimme that
law was heing carried out
pen."
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Fils ofterom news -> PONS living to 20 formal inditaly.
Notified whit, durinion w/Freller, lifered 25M
dunin to next day. met next AM., PSF 2 letters
(standard deaft from back, alterate eventually
risend). went in to POTS, n/a pubsure, just
option POTUS chose zl ontin, wated to bit
presedential import.
was intended thanker of power.
was solve 25th Amount.
Pleased for now to so and dortor sind sum.
C. 6:30 talked to Dortor re: trank back, man sevent
"tent" by POIUS, alean 4 nn capathe A recuming
authority
Only 53, leave $4 for another day.
C.O. book always -IFFF, for wey entingery.
L5: communation not soul, particulary serve.
FAF: test for Vees communitive system. Byler:
real and m/ line
CF views: briefing on wed - Fils procedue. Decided
A cartinue veep trip. because verp
not in entrolled situation Veep decise to return.
Did drive communition n/WHCA to
No problem w/ communition.
FFF: any difficulty when Buch Acti Prident about who
invo executing for W.H.
Basden: CF said "ronthing short of the 25th." should
not h doubt, became 1 puribility 1 smithing
going wrong on openatis tack
FCF: was some initial confusion.
AK: Regan all whit Fries afternoon Only
oble to wt 1/13 on service, po but m/ signal
easy m/wH.
FFF: should me have and FEMA intern ?
MeF: and would communities at all the - will the say
of that.
Chen: need B know where A deliver letters on Hill.
FFF: just need to inform minita, delivery at rentrit
to effectivence.
Chew: homelessis mtters
##: letter addressed
Faller: Una still working n/wH, im of who was
Unit, at didn't came up,
Spenk: I who for Pry, Fly In Ver, but
nothing other than hospital came up.
FFC: no mm to change for short term. Acti Pray can
do whatever be wants. Assume continuation of
exity what Act; Pry duat themic.
THE WHITE HOUSE
WASHINGTON
August 14, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS OPR
SUBJECT:
Meador Correspondence
Professor Meador has written asking for any public documents on
the transfer of authority pursuant to the 25th Amendment, and any
suggestions you might have concerning the White Burkett Miller
Center study on Presidential disability. The study commences
this fall.
Attached is a brief reply, transmitting the transfer and
resumption letters, the only public documents on the invocation
of the 25th Amendment. The letter also takes issue with the
assertion in the Charlottesville Daily Progress article on the
disability study that the Amendment "was not invoked" when the
President underwent surgery for cancer.
THE WHITE HOUSE
WASHINGTON
August 30, 1985
Dear Dan:
Thank you for your letter of August 8 requesting copies of
the President's letters and any other public documents
prepared in connection with the recent transfer of authority
during the President's surgery. The only public documents
are the letters, copies of which are enclosed.
As you and I discussed previously, my office had undertaken
a review of the legislative history of the 25th Amendment
some time prior to the President's surgery. Despite uncer-
tainties as to its applicability, the Amendment is always
available at the discretion of the President; in light of
all the circumstances, the President decided that a transfer
of authority to Vice President Bush was appropriate in this
instance. The letter transferring authority pursuant to
Section 3 was drafted in such a manner as to avoid estab-
lishing (or at least questioning) a precedent with respect
to any future brief periods of disability, when the sur-
rounding circumstances may compel this or future Presidents
to reach a different conclusion on invocation of the Amendment.
In any event, the Miller Center now has considerably more
grist for its mill on this question. I certainly hope not
to be compelled to confront these issues again, but I am
confident that the work of the Center will be of value to
whomever must do so in the future.
I will be pleased to provide any information or recollection
to the Project's participants, if it is deemed to be helpful
to its work.
Sincerely,
Fred F. Fielding
Counsel tto the President
The Honorable Daniel J. Meador
James Monroe Professor of Law
University of Virginia School of Law
Charlottesville, Virginia 22901
FFF: JGR:aea 8/30/85
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 27, 1985
Dear Dan:
Thank you for your letter of August 8 requesting copies of
the President's letters and any other public documents
prepared in connection with the recent transfer of authority
during the President's surgery. The only public documents
are the letters, copies of which are enclosed.
As you and I discussed previously, my office had undertaken
a review of the legislative history of the 25th Amendment
some time prior to the President's surgery. Despite uncer-
tainties as to its applicability, the Amendment is always
available at the discretion of the President; in light of
all the circumstances, the President decided that a transfer
of authority to Vice President Bush was appropriate in this
instance. The letter transferring authority pursuant to
Section 3 was drafted in such a manner as to avoid estab-
lishing (or at least questioning a precedent) with respect
to any future brief periods of disability, when the
surrounding circumstances may compel this or future
Presidents to reach a different conclusion on invocation of
the Amendment.
In any event, the Miller Center now has considerably more
grist for its mill on this question. I certainly hope not
to be compelled to confront these issues again, but I am
confident that the work of the Center will be of value to
whomever must do so in the future. I will be pleased to
provide any information or recollection to the Project's
participants.
Sincerely,
Fred F. Fielding
Counsel to the President
The Honorable Daniel J. Meador
James Monroe Professor of Law
University of Virginia School of Law
Charlottesville, Virginia 22901
FFF:JGR:aea 8/27/85
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 30, 1985
Dear Dan:
Thank you for your letter of August 8 requesting copies of
the President's letters and any other public documents
prepared in connection with the recent transfer of authority
during the President's surgery. The only public documents
are the letters, copies of which are enclosed.
As you and I discussed previously, my office had undertaken
a review of the legislative history of the 25th Amendment
some time prior to the President's surgery. Despite uncer-
tainties as to its applicability, the Amendment is always
available at the discretion of the President; in light of
all the circumstances, the President decided that a transfer
of authority to Vice President Bush was appropriate in this
instance. The letter transferring authority pursuant to
Section 3 was drafted in such a manner as to avoid estab-
lishing (or at least questioning) a precedent with respect
to any future brief periods of disability, when the sur-
rounding circumstances may compel this or future Presidents
to reach a different conclusion on invocation of the Amendment.
In any event, the Miller Center now has considerably more
grist for its mill on this question. I certainly hope not
to be compelled to confront these issues again, but I am
confident that the work of the Center will be of value to
whomever must do so in the future.
I will be pleased to provide any information or recollection
to the Project's participants, if it is deemed to be helpful
to its work.
Sincerely,
Fred F. Fielding
Counsel to the President
The Honorable Daniel J. Meador
James Monroe Professor of Law
University of Virginia School of Law
Charlottesville, Virginia 22901
FFF:JGR:aea 8/30/85
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
August 14, 1985
Dear Dan:
Thank you for your letter of August 8 requesting copies of the
President's letters and any other public documents prepared in
connection with the recent transfer of authority during the
President's surgery. The only public documents are the letters,
copies of which are attached.
A you and I discussed personal
Our views on the issues are explained in the transfer letter
itself. My office had undertaken a review of the legislative
history of the 25th Amendment some time prior to the President's
surgery. and I concluded on the basis of that review that the
Amendment was not intended to cover brief periods of disability,
in the sense that the drafters expected the Amendment to be
routinely invoked in such instances The Amendment is always
available at the discretion of the President; however, and in
light of all the circumstances, the President decided that a
transfer of authority to Vice President Bush was appropriate the notain
The letter transferring authority pursuant to Section metwet 3 was
drafted in such a manner as to avoid establishing, a precedent
with respect to any future brief periods of disability, when the
surrounding circumstances may compel this or future Presidents to
reach a different conclusion on invocation of the Amendment.
I remember the Daily Progress from my student days, and so should
not be surprised, but I do not see how it can report, in the
article you enclosed, that the 25th Amendment "was not invoked
when Reagan underwent surgery
for cancer."
In any event, the Miller Center now has considerably more grist
for its mill on this question. I certainly hope not to be
compelled to confront these issues again, but I am confident that
the work of the Center will be of value to whomever must do so in
the future. I will be please to devide any information a
resoliction ÷ the Propided Sincerely,
Fred F. Fielding
Counsel to the President
The Honorable Daniel J. Meador
James Monroe Professor of Law
University of Virginia School of Law
Charlottesville, Virginia 22901
THE WHITE HOUSE
Office of the Press Secretary
(Bethesda, Maryland)
For Immediate Release
July 13, 1985
TEXT OF A LETTER FROM THE PRESIDENT
TO THE
PRESIDENT PRO TEMPORE OF THE SENATE
AND
SPEAKER OF THE HOUSE OF REPRESENTATIVES
Dear Mr. President (Mr. Speaker) :
I am about to undergo surgery during which time I will be briefly
and temporarily incapable of discharging the Constitutional
powers and duties of the Office of the President of the United
States.
After consultation with my Counsel and the Attorney General, I am
mindful of the provisions of Section 3 of the 25th Amendment to
the Constitution and of the uncertainties of its application to
such brief and temporary periods of incapacity. I do not believe
that the drafters of this Amendment intended its application to
situations such as the instant one.
Nevertheless, consistent with my long-standing arrangement with
Vice President George Bush, and not intending to set a precedent
binding anyone privileged to hold this Office in the future, I
have determined and it is my intention and direction that Vice
President George Bush shall discharge those powers and duties in
my stead commencing with the administration of anesthesia to me
in this instance.
I shall advise you and the Vice President when I determine that I
am able to resume the discharge of the Constitutional powers and
duties of this Office.
May God bless this Nation and us all.
Sincerely,
/S/ Ronald Reagan
# # #
THE WHITE HOUSE
Office of the Press Secretary
(Bethesda, Maryland)
For Immediate Release
July 13, 1985
TEXT OF A LETTER FROM THE PRESIDENT
TO THE
PRESIDENT PRO TEMPORE OF THE SENATE
AND
SPEAKER OF THE HOUSE OF REPRESENTATIVES
Dear Mr. President (Mr. Speaker) :
Following up on my letter to you of this date, please be advised
I am able to resume the discharge of the Constitutional powers
and duties of the Office of the President of the United States.
I have informed the Vice President of my determination and my
resumption of those powers and duties.
Sincerely,
ISI Ronald Reagan
# # #
ID # 115011 CU
WHITE HOUSE
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t far anones a are t2
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your open as letters revolking pawers
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UNIVERSITY OF VIRGINIA
CHARLOTTESVILLE-VIRGINIA-22901
SCHOOL OF LAW
DANIEL J. MEADOR
JAMES MONROE PROFESSOR OF LAW
804/924-3947
August 8, 1985
Fred Fielding, Esq.
Counsel to the President
The White House
Washington, D.C. 20004
Dear Fred:
You may be interested in the enclosed newspaper clipping
which is the first public announcement of the Miller Center's
Project on the 25th Amendment.
The plan is to continue with conversations with informed
persons over the next few months, with the objective of selecting
and convening a commission that would then focus on the questions
that have been developed through these informal conversations.
This is an opportune time to suggest persons who should be talked
to and to suggest persons who would make good members of the
commission that will ultimately write the report on this subject.
We would indeed welcome suggestions from you.
When the President went into the hospital for his surgery I
was on the high seas en route to England for the ABA meeting.
This put me in something of a news void, and I'm still trying to
learn the details of that episode, especially the particulars
about the letter that I understand he wrote to Vice President
Bush. If you have any memos or documents that are not classified
relating to this, they would be quite helpful. In particular, if
it is possible to send me a copy of the President's letter, I
would greatly appreciate that. In any event, any suggestions you
have about this project will be welcomed.
Sincerely,
An
Daniel J. Meador
DJM/dm
Enclosure
Presidential
Study
Disability
Continued From Page B1
group to explore the problem of
presidential health, we never found
hand before suffering his more
one willing to undertake it."
Study Set
publicized debilitating stroke in
Although the 25th Amendment,
1919.
ratified in 1967, was thought to
The Miller Center will sponsor a
provide a definitive legal method
By STEVEN JOHNSON
series of forums and public lectures
for handling presidential disabili-
of The Progress Staff
on the 25th Amendment and presi-
ties, it was not invoked when Rea-
When then-Secretary of State
dential disability with such author-
gan underwent surgery after the
Alexander Haig stepped before the
ities as former U.S. Sen. Birch
assassination attempt and for can-
television cameras after the March
Bayh, D-Indiana, chief legislative
cer.
1981 assassination attempt on
architect of the 25th Amendment,
Consequently, the Miller Center
President Reagan and declared, "I
who will speak Oct. 21.
has pointed to several unresolved
am in charge,' he stepped into one
Although the commission's
issues for the commission to exam-
of the thorniest of all constitution-
charge appears to be drawn out of
ine, such as procedures if the vice-
al thickets.
current headlines, Thompson said
presidency is vacant, or the vice-
The issue of who is in charge in
the concept has been in the devel-
president is incapacitated as well
the case of presidential disability
oping stages for more than a year
as the president.
has arisen for the second time in
and has been in the back of his
Also to be looked at is who
five years with President Reagan's
mind for even longer.
would be in control of the govern-
temporary incapacitation during
Thompson said he and former
ment, and the aide who carries the
cancer surgery last month.
Secretary of State Dean Rusk have
codes necessary to initiate a nucle-
A national commission spon-
been interested in the issue of disa-
ar attack, if the president chal-
sored by the White Burkett Miller
bility for many years, "and al-
Senges a decision by the cabinet to
Center of Public Affairs at the Uni-
though we kept looking for some
remove him from office, thus
versity of Virginia hopes to finally
clear the thicket.
prompting a 21-day period during
Funded by a grant from the W.
which the vice president would be
Alton Jones Foundation, the com-
the acting president while- the in-
mission is investigating the medi-
cumbent still held claim to the title
of president.
cal, legal and political problems
that result when a president's abili-
ty to discharge the responsibilities
of office is threatened by his
health. Much of the commission's
emphasis will be centered on the
problems of presidential disability
not recognized or treated by the
S
25th Amendment.
Miller Center director Kenneth
1
Charlottesville Daily Progress
W. Thompson said the project will 1
Friday, August 2, 1985
be staffed primarily by himseif.
Page B1
UVa law professors Daniel Meador
10
and Paul B. Stephan, and Dr. Ken-
Я
neth Crispell, University Professor
of Medicine and Law and former
vice president for health sciences.
Crispell's contribution is particu-
larly interesting because he has
been working on a study of presi- o
dential health for several years,
studying presidential medical re-
cords and finding, for example,
that Woodrow Wilson had several C
strokes as president and had
teach himself to write with his left
Please See STUDY, Page B13
THE WHITE HOUSE
WASHINGTON
August 16, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS, JR.
SUBJECT:
Minutes of Follow-up Meeting
on 25th Amendment
The meeting convened at 2:00 p.m., August 5. Fielding, McFarlane,
Gregg, Fuller, Hauser, Thompson, Gray, Mosley, and Roberts were
present at the outset; Chew, Kingon, and Speakes arrived shortly
after the meeting began.
Fielding began the meeting by announcing its purpose as being to
discuss any problems that arose and iron out any difficulties that
were experienced so there would be no problems in the future,
should a similar situation arise. He then reviewed the facts: the
President made the decision Friday afternoon to proceed with
surgery Saturday, since he was already "prepped" for it, rather
than deferring the operation. The Cabinet was notified, and
Fielding discussed the situation with Fuller. A 25th Amendment
decision was deferred until Saturday. Fielding prepared two drafts
transferring authority, a "barebones" alternative and the letter
the President eventually signed. It was decided to present the
letters to the President, with no recommendation, just a listing of
options. The President chose to sign the letter transferring
authority but limiting the precedential impact of the transfer. A
transfer of authority under the 25th Amendment was intended by the
President.
Some confusion over the timing of the transfer, and the notifi-
cation of those involved, developed because the physician, who told
the staff that the President would go under anesthesia at noon,
"jumped the gun" out of concern to complete the surgery in the time
he had predicted.
Around 6:30 p.m. Fielding and others discussed with the physician
the possibility of the President being sufficiently cognizant to
reassume the authorities of the office. The staff ran several
informal "tests" by the President to be certain he was prepared to
knowingly reassume his powers. The President then signed the
appropriate letters.
After this review of the facts, Fielding opened the meeting for
comments. He noted that discussion should be limited to Section 3,
leaving Section 4 aside, and should not concern command authority
issues, which would be independently reviewed.
2
Speakes began by noting that communications -- particularly secure
communications -- were a serious problem. Gray agreed that there
were problems with communication with the Vice President's staff.
Later in the discussion Kingon recounted his difficulty in reaching
the Cabinet through signal (only able to reach one number), noting
he had greater success with the regular White House operators.
Fielding suggested that the FEMA system may be an option, but was
uncertain if that was reserved solely for succession communi-
cations. McFarlane stated that adequate communications were
necessary at all times, and that he would ensure that any problems
in the system were cured.
Fuller then recounted the episode from the Vice President's
perspective. Fuller was briefed on Wednesday on the planned Friday
procedure, and a decision was made to go forward with the Vice
President's trip to Maine. It was the Vice President's decision to
return when news of the surgery developed.
Fielding asked if there were any problems when Bush was Acting
President over who was speaking for the White House. Gray noted
Fuller told him "something short of the 25th" was done, and Gray
stressed that there should not be any doubt whenever a transfer is
made, in the event something goes wrong on the operating table.
Chew said it needed to be clarified where the letters to the Hill
should be delivered. Fielding replied that transmittal of the
letters, not receipt, was the critical point for effectiveness.
Fuller noted that the issue of who was the Chief of Staff, etc
when Bush was Acting President did not come up. After some
discussion, Fielding expressed the consensus that staffing ques-
tions and White House procedures were entirely under the control of
the Acting President, who was free to do whatever he desired.
Everyone should assume continuation of the existing White House
structure, however, unless and until the Acting President directs
otherwise. It would make no sense to assume a shifting of
responsibilities to the Vice President's staff, with the attendant
confusion, whenever the Vice President becomes Acting President.
THE WHITE HOUSE
WAEHINGTON
August 28, 1985
MEMORANDUM FOR DIANNA G. HOLLAND
FROM:
JOHN G. ROBERTS JOR
SUBJECT:
Previous Meador Correspondence
on 25th Amendment
This should be closed out. As indicated in Peter's note to
Mr. Fielding, the correspondence was acknowledged last
spring. It was restaffed to me for my thoughts. I dis-
cussed it with Mr. Fielding some time ago, when we first
revised the 25th Amendment binder, and at Mr. Fielding's
suggestion I called Professor Meador to obtain an update on
pending work on Presidential disability. All this took
place last spring. We recently had additional correspon-
dence from Meador on 25th Amendment issues in the wake of
the President's surgery, to which Mr. Fielding has responded.
No further action is required or appropriate on this file.
Attachment
280619
ID #
CU
sg
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under the 25th amendment
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