Constitution Not Invoked in Bush Power Transfer

In temporarily transferring presidential authority to Vice President George Bush on Saturday, President Reagan chose not to invoke the 25th Amendment to the Constitution.

But he achieved the same result: The vice president became “acting President” for almost eight hours while Reagan underwent surgery and recovery, just as Bush would have if the amendment had been invoked for the first time since its ratification in 1967.

Amendment’s Provisions

Among its provisions, the 25th Amendment sets up a process for the President to withdraw from office, voluntarily and temporarily, which he may do by notifying Congress that he is unable to discharge his powers and duties. The vice president takes over as acting President until the President notifies Congress that he is ready to return.

But Reagan, in a letter addressed to congressional leaders, said his legal advisers believed that the amendment might not be applicable to “such brief and temporary periods of incapacity” as those envisioned in Saturday’s nearly three-hour operation.

In his letter, Reagan said that in undergoing surgery, he would be “briefly and temporarily incapable” of performing his duties. Although he did not believe that the amendment was intended to apply in such situations, he said that under a “longstanding arrangement” with Bush, he was placing the vice president in charge “commencing with the administration of anesthesia to me in this instance.”

The President said he would advise congressional leaders and the vice president when he determined he was able to resume the job. Later, at 7:22 p.m., Reagan signed a second letter informing House Speaker Thomas P. (Tip) O’Neill Jr. (D-Mass.) and Sen. Strom Thurmond (R-S.C.), president pro tempore of the Senate, that he was able to resume the presidency.

The Administration, in declining to invoke the amendment, appeared to want to avoid setting a precedent for future situations that might involve only a brief presidential incapacitation, such as undergoing sedation for a tooth extraction. It was seen also as a means of lessening concern over the seriousness of Reagan’s incapacitation--a concern heightened because, at age 74, he is the oldest President in U.S. history.

But by formally placing Bush in charge--and thus following the spirit, if not the letter, of the 25th Amendment--the Administration enhanced the legal basis for the vice president to act with the full powers of the President should he need to do so.

Avoiding Criticism

And the Administration avoided the kind of criticism it received in 1981, when there was confusion over who was in charge while the President underwent surgery for a gunshot wound suffered in an assassination attempt.

At that time, then-Secretary of State Alexander M. Haig Jr. told reporters that he was “in control” pending the vice president’s return to Washington from a trip to Texas. There were reports of angry exchanges among officials over Haig’s comment. Later, Administration spokesmen stressed that even though he was under anesthesia and undergoing surgery, Reagan had not relinquished the presidency.

Nonetheless, the President’s action Saturday met with puzzlement in some quarters. Stanford University law professor Gerald Gunther, an authority on constitutional law, said he found it “a little strange” that the 25th Amendment was not invoked for what seemed to be the “clear and explicit” purpose for which it was intended.

‘Why Duck the Provision?’

“This was a major operation, with the President to be in the operating room for three or four hours, plus a period of recovery afterward,” Gunther said. “Why duck the constitutional provision?”

Historically, the vagueness of the Constitution’s original provisions for presidential disability has proved troublesome. Presidents James A. Garfield and Woodrow Wilson both suffered serious disabilities in office, performing only minimal duties, and transfers of power to their vice presidents were considered, but, ultimately, no such shift took place.

Reagan’s action Saturday resembled a procedure adopted by President Dwight D. Eisenhower and Vice President Richard M. Nixon during the Eisenhower Administration.

1958 Agreement

Eisenhower suffered three serious illnesses--including a heart attack--in a span of little over two years. In the absence of clear constitutional or statutory law on the question of temporary incapacity, Eisenhower in March, 1958, made public an agreement with Nixon calling for the vice president to serve as “acting president” in the event of presidential disability until the president recovered.

As a precautionary measure, President John F. Kennedy entered into a similar agreement with Vice President Lyndon B. Johnson in 1961, as did Johnson with Vice President Hubert H. Humphrey in 1965.

Johnson announced Oct. 5, 1965, that he would undergo gall bladder surgery and that under their agreement, Humphrey would act in his place, if necessary.

Congress sought to clarify the process for presidential succession and to provide for presidential disability when it passed the 25th Amendment.

One section enables a President to temporarily withdraw from office when disabled, assigning authority with the vice president until he recovered. Another covers situations where there is disagreement over whether the vice president should take over because of the President’s mental or physical condition; the final decision in such cases is to be made by Congress.