The Elephant in the Room (originally aired May 31, 2006)
- Issues: temporary presidential succession, work stoppages
President Allen has to undergo surgery for appendicitis, leaving House Speaker Templeton in a position to become president for a short time. During his presidency, he takes drastic and quick action to prevent a long-running airline strike from affecting an upcoming holiday weekend.
- Temporary Presidential Succession. No real-life president has invoked the Twenty-Fifth Amendment's procedures for handling a temporary situation where the president's judgment or abilities might be impaired. Under the amendment's third section, if the president is "unable to discharge the powers and duties of his office," he can voluntarily step down temporarily and allow the vice president to assume the powers and duties of the office until he transmits another written declaration to the contrary. Under the Presidential Succession Act (3 USC 19, on-line here), the Speaker of the House can resign from Congress to serve as president when there is a vacancy in the presidency and vice-presidency.
The Twenty-Fifth Amendment was created in the wake of the assassination of President John F. Kennedy in 1963, adopted by Congress in 1964, and finally ratified by the states in 1967, and it dictates how executive power is transferred when the chief executive is "unable to discharge" his duties. The first two sections clarify the succession from president to vice-president, and were used in the 1970s when President Richard Nixon filled Spiro Agnew's vacancy with Gerald Ford in 1970, and when Ford then replaced Nixon as President in 1974 and nominated Nelson Rockefeller as his own vice-president.
Under the third section, the president can voluntarily transmit a "written declaration that he is unable to discharge the powers and duties of his office," and until he transmits another written declaration to the contrary, the vice president serves as acting president with full powers and duties. This section has never been formally invoked, despite two known opportunities -- both during the Reagan presidency -- in which it arguably should have been.
The first occasion was the March 1981 assassination attempt in which Reagan was seriously wounded. Reagan did not sign a written declaration and so arguably retained the reins of power even during the 12 hours while he was anesthesia and in surgery. Even Reagan's own cabinet was confused about who held the powers and duties of the presidency, with Secretary of State Alexander Haig incorrectly declaring that he was "in control" and misquoting the Constitution.
The second was in July 1985, when Reagan underwent colon 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." Reagan specifically stated that he did not believe the Twenty-fifth Amendment to apply to "such brief and temporary periods of incapacity" like this one but that it was "my intention and direction" that Vice President George Bush discharge presidential powers upon the administration of anesthesia. Bush served as acting president for only eight hours, but many have questioned whether Reagan's letter constitutionally did transfer even temporary power and whether there was anyone legally holding the powers and duties of the presidency for that period.
- Work Stoppages. Even without new legislation, current federal law gives the president some powers to delay or prevent an airline strike and other major work stoppages.
First, the president can invoke the Railway Labor Act to stop strikes affecting rail and air carriers for 60 days when such a dispute threatens "substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service." Technically, the president creates an emergency board that has 30 days to issue a report, and then the parties have a 30-day cooling-off period to consider the board's recommendations before resuming any stoppage. The Railway Labor Act allows the president to delay a stoppage affecting a commuter rail carrier for another 90 days if necessary.
President George W. Bush invoked the Railway Labor Act twice in 2001, once with Northwest Airlines (Executive order on-line here) and once with United Airlines (Executive order on-line here). President Clinton invoked the act 14 times, mostly with rail carriers. A list of emergency boards is on-line here.
Second, the president is authorized under the Labor Management Relations Act of 1947 (commonly known as the Taft-Hartley Act) to prevent a strike or lockout affecting all or a substantial part of an industry for 80 days when such a stoppage would "imperil the national health or safety." Similar to the Railway Labor Act, the president appoints a board of inquiry to report on the dispute, and the president can th-en petition a federal court to issue the injunction; neither party is under any duty to settle after this 80-day period but employees must vote before the end of the period as to whether they wish to accept their employer's final offer.
During the 15-day strike by the Teamsters against the United Parcel Service in August 1997, many urged President Bill Clinton to invoke Taft-Hartley to end the strike, but Clinton said that the situation did not arise to the level required under law. Treasury Secretary Robert Rubin told reporters at the time that no president had invoked Taft-Hartley in the twenty years preceding the Teamsters strike. The strike involved a dispute over a two-tier wage system involving full-time and part-time workers.
Sources: David P. Twomey, Labor & Employment Law (South-Western Publishing Co., 8th ed., 1989). The National Mediation Board, which coordinates use of the Railway Labor Act, is on-line here.
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By Stephen Lee
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