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The Law: When Law and Politics Collide: Presidents and the Use of the Twenty-Fifth Amendment

Authors

  • NANCY KASSOP

    Corresponding author
    1. State University of New York–New Paltz
      Nancy Kassop is professor and chair of the department of political science and international relations at the State University of New York at New Paltz. Her most recent articles are “The View from the Executive” in Making Policy, Making Law: An Interbranch Perspective, edited by Mark C. Miller and Jeb Barnes, and “Not Going Public: George W. Bush and the Presidential Records Act” in In the Public Domain: Presidents and the Challenge of Public Leadership, edited by Lori Cox Han and Diane J. Heith.
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  • AUTHOR's NOTE: I gratefully acknowledge the contribution to this article of John Fortier, Executive Director of the Continuity of Government Commission at the American Enterprise Institute, and I am greatly indebted, as always, to Louis Fisher of the Congressional Research Service for his very careful reading and constructive suggestions here.

Nancy Kassop is professor and chair of the department of political science and international relations at the State University of New York at New Paltz. Her most recent articles are “The View from the Executive” in Making Policy, Making Law: An Interbranch Perspective, edited by Mark C. Miller and Jeb Barnes, and “Not Going Public: George W. Bush and the Presidential Records Act” in In the Public Domain: Presidents and the Challenge of Public Leadership, edited by Lori Cox Han and Diane J. Heith.

Abstract

Since the ratification of the Twenty-Fifth Amendment in 1967, presidents have been advised by White House counsels on how and when to apply the sections that address temporary vacancies in the office of the president and transfers of power during such times. Early experience with presidential illness and incapacitation under the amendment during the Reagan administration indicated that counsels recognized the constitutional and practical purposes of these provisions, but encountered opposition from presidents and political advisers who viewed any temporary transfer of power as politically damaging to an incumbent president. More recent experiences suggest that counsels have been moderately successful in impressing the need for prior arrangements between presidents and their vice-presidents on matters of incapacitation.

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