Vital Precedent

In the six hours that President Eisenhower lay unconscious during and after his operation for ileitis in June 1956, the Pentagon was seriously concerned about who could give the order to retaliate in the event of an enemy attack. The President's staff patched up a workable but probably extralegal procedure--Cabinet members stood by their telephones; air strike forces put on special alerts--and it was agreed that if the enemy did attack, the retaliation order would be given by a presidential standin, presumably Vice President Richard Nixon.

When President Eisenhower got well, he grew increasingly concerned about the missile-age command paralysis that might come to the nation in the event of presidential disability. When he flew across the Atlantic after his stroke last year to attend the NATO heads-of-government conference, he even pondered who could legally take command of the country if his plane had to ditch in midocean, with nobody to say whether the President of the U.S. was alive or dead.

Musical Chairs? Last week the President published the terms of a precedent-making answer to the 170-year-old problem of presidential disability that he has worked out with Vice President Nixon. The gist: in the event of disability, 1) the President would, if he were able, call in the Vice President to take over as Acting President, to perform all presidential acts and fulfill all presidential duties; 2) the Vice President would, if the President were not able, and "after such consultation as seems to him appropriate," decide whether to declare the President unable and take over as Acting President; 3) but the President, not the Vice President would determine when disability ended and when the President could resume full powers.

"We are not trying to rewrite the Constitution," explained the President at his news conference,"we are trying just to say that we are trying to carry out what normal humans of good faith having some confidence in each other would do in accordance with the language of the Constitution . . . Now, I admit this: if a man were So deranged that he thought he was able, and the consensus is that he couldn't, there would have to be something else done, no question."

Human Roadblock? Next day Attorney General William P. Rogers called a news conference to explain the legal basis for the agreement as he saw it. The agreement rests, he said, upon his own constitutional interpretation that, given disability, only the powers of the presidency and not the office of the presidency devolve upon the Vice President. Even so, said Rogers, the situation would be much clearer with a constitutional amendment that would 1) require the Vice President to get majority approval from the Cabinet, i.e., from the President's own personal appointees, before declaring the President disabled, and 2) empower Congress to rule on any dispute in which a disabled President might declare that he had recovered and wanted his powers returned to him, while the Vice President and a majority of the Cabinet dissented.

Earlier in the week a bipartisan group of Senators led by Illinois Republican Everett McKinley Dirksen and Tennessee Democrat Estes Kefauver had proposed a new constitutional amendment that said substantially that. But the amendment was bound to run into a roadblock in the person of House Speaker Sam Rayburn, who is determined that Congress shall have the decisive voice as to whether the President is disabled.

Amendment or no, the Eisenhower-Nixon agreement had created a vital new precedent--and in the developing federal system, precedent itself tends to blast away or to outpace deadlock.* The immediate result is that Nixon no longer need hesitate to exercise authority in the event of a disabling presidential illness. And because of that, other Vice Presidents to come will pay more attention to the affairs of the presidency, well aware that they will be expected to assume the responsibility in crisis.

*When President William Henry Harrison died in 1841, Vice President John Tyler set the precedent that a Vice President takes over pres idential powers on the President's death, not as Acting President but as President of the U.S.

Tyler thus blasted a path through constitutional ambiguity that six Vice Presidents have since followed.

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