§ 667. Questions Undetermined.

A criticism that may be made both to the constitutional provision and to the acts of 1792 and 1886 is that the term

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inability" to discharge the powers and duties of the presidential office is not defined. In the absence of a definition, who is to determine, and what conditions are to be held to create, an inability on the part of the President to perform his official duties? What is to be done in case the President is temporarily disabled by sickness or accident, or insanity? Who is to decide, and by what criteria when this disablement is so serious and so prolonged as to require the appointment of an acting President. For the two months preceding the death of Garfield the country had no President able to perform the duties of the Chief Executive.

One further point with reference to the succession to the presidency has been raised. In an interesting article in the American

permitting an acting President to decide whether or not there shall be such a special election? If the acting President were to veto such a bill, it is to be feared that the majority in Congress might tie up the whole machinery of the government.

"Let us take another case. Suppose that a Republican President is in office, but that the Republican party is in a minority in one house and has a very slender majority in the other. This condition happened in 1881 under President Garfield. Let us further suppose that the President and VicePresident die; that the Secretary of the State succeeds to the Presidency and that he is bitterly opposed by many members of his party. Is it going too far to predict that the Democratic party might introduce a bill for a special election, knowing its ability to pass it in one house and relying upon assistance from enough members of the Republican party to carry it through the other? Is it not conceivable that the acting President might use all the patronage he controls to prevent the passage of such a bill? Is it not also possible that Congressmen (of course none in the present Congress) might couple requests for appointments of constituents with a gentle intimation that, if made, the acting President need not worry as to the fate of any bill providing for special election.

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It is hardly possible to overestimate the disturbance to the business interests of the country which might arise under such circumstances. The office of President would be held at the will of the legislative body. The power of the executive would be merged in that of Congress. Such a condition would be in hopeless conflict with the principles of the Constitution." Harvard Law Review, XVIII, 191, "The Presidential Succession Act of 1886."

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Law Review, the author, Mr. Lewis R. Works, points out that the language of the Constitution, strictly followed, would seem to point to, or at least render possible, the construction that upon the death, removal, resignation, or inability of the President, the Vice-President does not become the President, but simply that the powers and duties of the office "devolve" upon him. In Section III of Article I the Senate is authorized to choose a President pro tempore in the absence of the Vice-President "or when he shall exercise the office of the President of the United States," not when he shall become the President. This being so, in cases of disability of the President the Vice-President may by Congress be empowered not to be President, but to act as the President.

The uniform practice has been, however, since the time when Tyler took the oath of office on the death of Harrison, to consider the succeeding Vice-President as becoming the President. Under this practice, however, Mr. Work asks, what, in case of disability, does the late President become, and how, upon removal of his disability, would he again become President? Does the VicePresident cease, for the time being, to be Vice-President, or does he hold both offices?

§ 668. Third Term.

The Constitution provides that the President and Vice-President shall hold office for the term of four years. The proper length of term, and the propriety of forbidding re-election, were discussed in the Convention and the four-year period with eligibility to re-election finally agreed upon. Nothing is said in the Constitution as to the number of times the same person may be re-elected President, but, as is well known, the propriety of restricting the number of successive terms has become firmly rooted in the American mind.

With reference to this third term tradition one observation may perhaps be made. This is, that the doctrine is generally

6 Vol. XXXVIII, 50. "The Succession of the Vice-President under the Constitution. An Interrogation."

considered to have been first stated by Washington in his " Farewell Address." It would appear, however, as the historian McMaster has pointed out, that Washington did not there attempt to lay down a principle, but simply to explain that he did not feel that the then condition of the country required him to serve a third term. He says: "The acceptance and continuance hitherto in office, to which your suffrages have twice called me, have been a uniform sacrifice of inclination to duty, and to a deference to what appeared to be your wishes. I rejoice that the state of your concerns, external as well as internal, no longer renders the pursuit of this inclination incompatible with the pursuit of duty or propriety." Jefferson was the first to decline a third term upon principle. Having been invited by a number of the States to stand for a third term he wrote (December 10, 1807): "That I should lay down my charge at a proper period is as much a duty as to have borne it faithfully. If some termination to the services of the Chief Magistrate be not fixed by the Constitution, or supplied by practice, his office, nominally four years, will in fact become for life; and history shows how easily that degenerates into an inheritance. Believing that a representative government responsible at short periods of election is that which produces the greatest sum of happiness to mankind, I feel it a duty to do no act which shall substantially impair that principle; and I should unwillingly be the first person who, disregarding the sound precedent set by an illustrious predecessor, should furnish the first example of prolongation beyond the second term of office."

From this time the propriety of principle was generally recognized. McMaster does indeed think that Jackson's popularity was great enough to have secured him a third term had he been willing to break the rule. As is well known strenuous but futile efforts were made to secure a third nomination for Grant.

How strong the sentiment might be to giving three or more terms to the same person, so long as not more than two are suc

7 In the chapter entitled "The Third Term Tradition" in the volume entitled With the Fathers.

cessive, has never been tested. President Roosevelt upon his election in 1905 declared that, in accordance with the spirit, if not the literal requirements, of the tradition against a third term, he would consider the three years which he served as the successor of McKinley as a first term for himself, and that he would not, therefore, be a candidate for renomination in 1908.

CHAPTER LIX.

THE POWERS AND DUTIES OF THE PRESIDENT.

669. The Oath of Office.

Before entering upon the execution of his office, the President is constitutionally required to take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The making of this oath or affirmation marks the induction into office. The requirement that it shall be taken is undoubtedly dictated by the belief that thus an additional moral obligation will be placed upon the one taking it. That it adds no new legal obligation would follow from the fact that, beyond doubt, were this oath or affirmation not required, the President like all other public officers would be equally liable for any misfeasance or nonfeasance of duty. It would seem equally true that the taking of this oath or affirmation, in pursuance of a constitutional requirement, confers no powers upon the President. Jefferson and Jackson, indeed, referred to this oath as supporting them in their contention that with reference to the performance of their constitutional duties they, as being sworn to support the Constitution, might interpret finally for themselves, the meaning of its provision; but their position was unquestionably a false one.

§ 670. Constitutional Powers of the President as Chief Executive.

By Section I of Article II, it is declared that "The executive power shall be vested" in the President. By Section III it is required that "he shall take care that the laws are faithfully executed." In ultimate resort, then, all federal executive authority is in the President, and upon him lies the responsibility for seeing that the laws of the United States are faithfully executed,