This month marks the 55th anniversary of Congress’ passage of Senate Joint Resolution 139. You’ve probably never heard of it, but its consequences are as pertinent today as they were then. The nation had just lost President John F. Kennedy to an assassin’s bullet and, in its mourning, faced a constitutional crisis it did not even realize existed.
The Founding Fathers established the position of vice president primarily to prevent a chaotic change of governmental leadership in the event of the death of the president. The founding document they ultimately approved for our republic, did not, however, state how, or even if or when, the president would choose a vice president.
At first, it was established that whichever candidate came in second in an election would assume the office of vice president. This meant that the second in line to the presidency would, most often, come from an opposing political party. With two political opposites occupying the White House, and the uncertainty of what would happen to the president’s platform if the vice president were to take over the office, there was great turmoil within the executive and legislative branches of the government. The Constitution was amended in 1804 so that the president and vice president were voted for on separate ballots, which, under the electoral college system, virtually assured the #2 in the White House would be of the same party as his or her boss.
What the Constitution, and this addition to it, did not do, though, was specify how a vice president who becomes president upon the loss of the commander in chief, chooses a second in command. By prescript of the document, the vice president had to be, in the electoral college system, the candidate for vice president who received the most electoral votes on the ballot for the office. If a president left office before his or her term ended, his or her successor, could not legally have a vice president. This could lead to its own Constitutional crisis.
Four Presidents have served their entire term without a Vice President. One such, was Andrew Johnson, who assumed the highest office in the land after the assassination of Abraham Lincoln. This created a nearly crippling challenge when, in 1868, Johnson fired Secretary of War, Edwin Stanton despite a law requiring Congressional approval to do so. The president declared he had executive privilege to remove anyone within his administration he wished.
The House of Representatives approved articles of impeachment and Johnson stood trial in the Senate, where if a two-thirds majority voted to convict, he would be removed from office.
The problem was, he had no vice president to succeed him.
In May 1868, the Senate was split, — 35 voted to convict, 18 voted not guilty. James Grimes, the senior senator from Iowa, had just suffered a stroke. He was wheeled onto the Senate floor, and, gasping, cast the deciding vote in favor of retaining Johnson. He stated, delicately, that he simply could not agree “to destroy the harmonious workings of the Constitution for the sake of getting rid of an unacceptable president.” With that, the former governor of Iowa, who had also introduced a bill in Congress creating the Medal of Honor, prevented a Constitutional crisis.
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The issue, however, continued to arise as eight subsequent presidents endured a part of their term without a No. 2. Finally, in 1964, after the loss of President John F. Kennedy, with another Johnson, Lyndon Baines, ruling with no vice president, Sen. Birch Bayh drafted Senate Joint Resolution 139, which provided that the president would submit the name of nominee who would become vice president upon a majority vote in the House and Senate. The bill, even more significantly, did not stop there, though. It also went on to state that a president could be removed from office if a majority of cabinet members (in 2019, that would be seven) plus the vice president, wrote a letter to Congress stating that the president is unable to discharge the duties of his or her office. The Vice President would become acting president until the accused chief executive could prove soundness for public service.
Congress would have a maximum of 21 days to review the case. And if it’s determined by two-thirds vote in the Senate and House that the deposed president is unfit for office, that person would be permanently stripped from office and the Acting President would hold the position of President to the end of his or her term.
Senate Joint Resolution 139 was approved by the Senate through a roll-call vote of 65-0 in September. But because the congressional session would end within a month, and with the House of Representatives preoccupied by the Civil Rights Bill, SJR 139 was not forwarded to the lower legislative body until the following year. It was affirmed by the House in July of 1965 and submitted to the states for ratification. The General Assembly of Iowa, on January 26, 1967, became the 35th state to affirm it. Two weeks later, Nevada ratified the Bill, and the Vice Presidential Succession Act became the 25th Amendment to the United States Constitution.
David V. Wendell is a Marion historian.