[Congressional Record Volume 140, Number 2 (Wednesday, January 26, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: January 26, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                       REPEAL THE 25TH AMENDMENT

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Texas [Mr. Gonzalez] is recognized for 5 minutes.
  Mr. GONZALEZ. Mr. Speaker, today I am reintroducing a resolution to 
repeal the 25th amendment to the U.S. Constitution regarding 
Presidential succession. In doing so, I merely am reaffirming what I 
have done since the resolution, is August of 1965, was passed by this 
House with about 28 dissenting votes. Mine was one of them.
  I was the only one that gave the reasons why I voted ``no'' in the 
Record, and those reasons any interested Member can find in that Record 
of about August 6, 1965.
  I never dreamed that that amendment or that resolution would pass so 
overwhelmingly, and then moreover adopted by three-fourths of the 
States' legislatures. For I felt then, as I feel now, that it would be 
a Damocles' sword hanging over the head of our democratic institutions.
  What is the 25th amendment? How many of my colleagues here can tell 
me they know the exact thrust of the 25th amendment?
  In that remark I made in special orders after that session and that 
vote in August of 1965, I pointed out that for the first time in our 
history and since the Constitution had been written, the worst fears 
that the writers of the Constitution had and the reason they had so 
much trouble in finally reaching the office of the Presidency, which 
they first called the Chief Magistrate, was that they wanted to have a 
person that could not be imposed or selected but voted by the people, 
and then the enabling statutes that were passed after the First 
Congress in 1789 provided that. It said that in the case of the 
neutralizing, the death, for whatever reason the vacation, the vacating 
of the office of the President, the Vice President would be, but if 
that President had had less than 1\1/2\ years in office, then an 
election would be called, and the American people would vote.

  So what happened since then? The worst fears that I could ever 
imagine in 1965, have come to pass and not too long after that. In 
1974, with the resignation under the threat of impeachment of President 
Nixon, what was the role of Henry Kissinger and General Haig? They 
threatened to invoke the 25th amendment if President Nixon did not 
resign under the imminent threat of being impeached. Why could they do 
that? Because section 4 of the 25th amendment says that if the majority 
of the governing body decide that the President is unable to discharge 
his duties, they shall declare his inability, and the President then 
shall vacate the office; the Vice President becomes acting President, 
and a commission shall be formed thereafter consisting of three persons 
to be selected by the Congress.
  Now, the Congress has never enacted enabling legislation saying the 
House and the Senate will get together, and the House will select one 
or two or all three, or the Senate one, two, or all three.
  So we had our President resign, and we had since then two unelected 
Vice Presidents, and, of course, the unelected President. That danger 
hovers and will constantly be hovering, and, therefore, every Congress 
since then I have introduced a repealer.
  Mr. Speaker, I hope eventually some serious consideration is given to 
restoring to the original intent the succession laws and the clause 
represented as the 25th amendment to the Constitution.
  Mr. Speaker, I am reintroducing a resolution to repeal the 25th 
amendment to the U.S. Constitution regarding Presidential succession. 
In doing so, I am reaffirming a conviction I have held since the 
amendment was first discussed in the House over 28 years ago, and I 
believe as strongly today as ever, that the 25th amendment is a threat 
to the stability of elected Government in this country.
  We value our Constitution because it ensures that the Government is 
elected and that the elected Government is bound by laws. But laws and 
constitutions are only as strong as the will of the people to keep and 
enforce them. A government respects law only if its leadership is 
committed to law, and we know that this is not always the case. In the 
25th amendment, we have a device that is intended to provide for an 
orderly succession in the office of President. Proponents of the 
amendment had the best of intentions, but to conceive and write the 
legislation that was going to truly carry out those intentions is 
something else. The result is that we have a standing invitation in 
law--in the Constitution--to overthrow the President through the 
operation of the disability clause of the 25th amendment.
  There are no guarantees to life, and there is no way of knowing 
whether the 25th amendment will become applicable during this or any 
other administration. However, Presidential succession has been an 
issue in nearly every Presidency since Woodrow Wilson, starting with 
Wilson's stroke and 2-year disability while in office, then Roosevelt's 
death, Eisenhower's heart attack, Kennedy's death, Nixon's resignation, 
Reagan's near assassination and later cancer surgery, and Bush's 
illnesses and medication.
  Mr. Speaker, I have voted many times over the years in ways that 
clearly show I am in the minority on some issues, and I was one of the 
very few dissenters in what turned out to be the resolution calling for 
the 25th amendment. I have introduced legislation in an attempt to 
repeal the 25th amendment ever since it was ratified in 1967. Now, who 
bothers with the 25th amendment? And who was going to tell me, when I 
took the floor in August 1965, and was the only one giving reasons for 
voting ``no'' to that resolution, that I would see the worst fears 
confirmed in my lifetime. I never dreamed of the extraordinary dangers 
inherent in that amendment.
  What is the 25th amendment? Among other things it was passed because 
apparently it was felt that a great crisis had ensued after the death 
of President Kennedy and the assumption of the Presidency by Vice 
President Lyndon Johnson because Lyndon Johnson did not have a Vice 
President for a year. As stated in ``The Process of Political 
Succession,'' edited by Peter Calvert--St. Martin's Press, New York 
1987--the orderly transition on the assassination of John F. Kennedy 
was not in fact as orderly as it was made to seem to the outside world, 
but compared with the chaos that followed the attempted assassination 
of Ronald Reagan in 1981, and I might add what followed his cancer 
surgery in 1985, it was a model. And, of course, what happened in 
between--with President Nixon in 1974--was just as chaotic. If the 25th 
amendment was meant to eliminate chaos and provide for a smoother 
transition, this has not been accomplished.
  Well, what happened in 1974? We had Chief of Staff Alexander Haig and 
Secretary of State Henry Kissinger--both positions which are filled by 
appointment, not election by the people--saying, ``President Nixon, if 
you do not resign, we may have to invoke the 25th amendment.'' These 
two unelected officials were going to use the disability clause of the 
25th amendment to make a decision for the American people--to force the 
President out of office.
  Later, upon the attempted assassination of President Reagan in 1981, 
Alexander Haig as Secretary of State was again at the scene--claiming 
to be in charge of the country when, in fact, there were three men 
ahead of him in the line of Presidential succession. Such ambition, and 
such ignorance of our Constitution and the 1947 Presidential Succession 
Act, is precisely the danger inherent in the disability clause of the 
25th amendment.
  In 1985, President Reagan's cancer surgery caused another crisis in 
possible Presidential succession. The President's reluctance to turn 
over the reins of power under the 25th amendment during his 
recuperation period may have caused one of the worst scandals in recent 
history--the Iran-Contra affair. In fact, when President Reagan went in 
for the actual surgery, he did not want to set a precedent and bind the 
hands of his successors, so although he wrote a letter that followed 
the format of the 25th amendment, he did not call what he was doing an 
action under the 25th amendment and, in fact, said that he did not 
think the 25th amendment applied to his temporary sedation for surgery. 
But what about his recuperation--a person does not have major surgery 
and go back to work at full force as soon as the anesthesia wears off. 
Yet, I have read that the President's legal counsel, Fred Fielding, 
together with the Chief of Staff Donald Regan, made the decision for 
the President to resume the office of the Presidency immediately after 
his surgery--not the doctors, not the Cabinet, but two unelected 
Presidential advisers made the decision. When asked about this, Mr. 
Fielding said that his and Regan's decision was based on the surgeon 
saying that the President was OK. They reportedly accepted this on face 
value, and did not question the physicians about the President's 
judgment.
  It was a terrible thing for the President to be brought back to 
office that soon--a terrible thing for the country. Reports that 
President Reagan made Presidential decisions during his recovery from 
cancer surgery lends additional credence to the former national 
security adviser Robert McFarlane's contention that he received oral 
approval from Reagan for the arms shipment to Iran. Reagan underwent 
surgery on July 13--the first arms shipment occurred the next month. 
Was the President reluctant to invoke the 25th amendment because of its 
disability provisions--because of the possibility that he could not 
regain power once he regained his health? The 25th amendment certainly 
did not help prevent this tragic mistake in judgment, and it possible 
caused it because of the fear that power, once relinquished, could not 
be regained.
  As reported in the book ``Papers on Presidential Disability and the 
Twenty-Fifth Amendment,'' edited by Kenneth W. Thompson--University 
Press of America, Maryland 1988--one of the drafters of the amendment, 
former Senator Birch Bayh, has stated that there was concern about the 
possibility that a means for a coup d'etat was being created by the 
language of the amendment. He has said that this concern lead to the 
inclusion of the President's Cabinet in the decisionmaking of the 
President's inability to discharge the duties of his office. But the 
25th amendment does not even mention the President's Cabinet; instead, 
it states:

       Whenever the Vice President and a majority of either the 
     principal officers of the executive departments or of such 
     other body as Congress may by law provide * * * [determine] 
     that the President is unable to discharge the powers and 
     duties of his office, the Vice President shall immediately 
     assume the powers and duties of the office as Acting 
     President.

  In fact, in light of the fact that the amendment was drafted in 
response to the assassination of President Kennedy, it is significant 
that Senator Robert Kennedy expressed grave concern about this 
provision of the amendment.
  Senator Bayh has reported that Senator Kennedy objected to the 
language and told Senator Bayh that President Kennedy did not know any 
of the members of his Cabinet personally until he appointed them. 
Senator Kennedy believed that the Cabinet, then, was not close to the 
President and could not possibly offer the kind of protection against a 
coup that Bayh and the other drafters of the amendment thought they 
were providing. And I agree--you cannot give those with the most to 
gain from a decision the nearly absolute power to make that decision 
and not expect it to be abused at some point.
  Compounding the inherent danger caused by the disability clause are 
the technical problems. For instance, what constitutes an inability to 
discharge the duties of the Presidency? Is this limited to medical 
disability, or does it include political inability to lead a country? 
What is the duty of the President's physician if he uncovers a serious 
illness which the President wishes to keep confidential--what happens 
to the physician-patient privilege against revealing such information? 
Further, if inability includes being under anesthesia, as many believe 
despite President Reagan's assertions to the contrary, does it also 
include being under the influence of sleeping pills? How about 
inebriation, or even changes in mood caused by prescription medication? 
With so much left to interpretation by those who are charged with the 
responsibility of making a determination of the President's ability to 
discharge his duties, there is much room left for mischief.
  And what is the incentive that would lead the Vice President and 
members of the President's Cabinet to move--for their own purposes--
under the disability clause of the 25th amendment? Look at what have we 
have had lately. Since 1945, but much more so in the last decade, we 
have seen the rise of the imperial Presidency in this country. I dare 
say that perhaps the overwhelming majority of the Members in or out of 
the Congress as well as the citizens would say, if asked, that the 
president has more power, that he is omniscient, and that he is of 
greater power and authority than either one of the other two branches. 
That simply is not true, and it is in direct contradiction to the U.S. 
Constitution. Yet, our Presidents have been approaching a position of 
absolute authority with greater momentum every day. Look at the recent 
vote by Congress to give the President absolute authority to negotiate 
a free-trade agreement with Mexico. And look at the recent votes 
ratifying the President's unilateral warmaking. I was one of only three 
who criticized the Presidential order giving rise to the invasion of 
Panama on December 20, 1989. And I was one of only a handful that 
opposed the Persian Gulf war--a war that was begun in August of 1990, 
by the President, not in January by the Congress when the vote was 
finally taken. I do not take any pleasure in these votes, but I am also 
very sensitive to the fact that we are a coequal and a separate and an 
independent body, like the other two branches of the Government, the 
executive and the judiciary; but for good reason the men who wrote the 
Constitution put the first article as the representative branch, the 
Congress, and the second and third articles as the executive and 
judicial branches.

  In our Nation's first 10 years of nationhood, which really were the 
first and the second Continental Congresses, our leaders thought so 
little of this kind of an office that they did not even bother to have 
anything like it. There was no such thing as a President, or as they 
called it in the Constitutional Convention deliberations, a Chief 
Magistrate. They did not want to have anything to do with that from 
which they were extricating themselves--tyrannical, arbitrary, and 
capricious power.
  This is why the most revolutionary words even to this day are the 
first words of the Preamble of our Constitution, where we read and I 
encourage every student in my district in the elementary schools and on 
up to memorize that because that is at the heart of the matter even 
today. ``We, the people of the United States, in order to form a more 
perfect union.'' We, the people, not the Congress, not the President, 
not anybody else but the people. Why? Because for the first time in 
this world then of kings who said that their power came from God, they 
were saying no, that all power comes from the people. We have strayed 
away from that, so that when we end up with any possibility, and in 
fact the reality, that we can have an unelected President and an 
unelected Vice President, we have a continuing sword pointed at the 
very heart of our democratic constitutional form of government.
  As the President gains greater and more absolute power, it is 
increasingly important for us to reevaluate the 25th amendment. The 
incentives for blind ambition to govern actions under the disability 
clause of the 25th amendment are stronger now than ever before. We must 
not allow provisions for a coup d'etat--which the disability clause 
establishes--to remain a part of our law. As a nation established on 
the principle of the power of the people, we have provided through the 
25th amendment a means of relinquishing that power and establishing it, 
instead, in a very few unelected Government officials. How can we allow 
this kind of Presidential power--which our Founding Fathers feared and 
tried to prevent, but which has grown out of any sense of proportion in 
recent years--to be held by an unelected President who has assumed 
power over the wishes of the elected President? The 25th amendment 
allows this, and it is wrong. It is dangerous, and the 25th amendment 
should be repealed.

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