Who's Minding the Store?

By Richard Stengel

As he held the document that would effectively make George Bush the acting President of the U.S., Ronald Reagan turned to his wife Nancy and quipped from his hospital bed Saturday morning, "This doesn't mean you can become George's [First] Lady." Despite the levity, the President was aware that this temporary but official transfer of presidential power, the first known in U.S. history, was a complicated matter with serious implications for the future. During the several hours that he would be under anesthesia, and possibly for some time thereafter, the President would be unable to make a decision or discharge the powers and duties of his office. In the interim, Reagan and his aides knew, they had to establish clearly who would have the ultimate responsibility as Commander in Chief. Beyond that, the White House staff needed to make plans for running the Government during the President's recuperation, however long that might be. If, as an old saying goes, "power is where the President is," then the most powerful office in the world would be transferred to Bethesda Naval Hospital.

Such arrangements have been confused or ill defined in the past, as they were when the President was shot four years ago and when other Presidents suffered from long illnesses (see following story). Reagan and his aides knew that the actions they took could set precedents for his successors and perhaps alter, however temporarily, the course of his own presidency.

After careful consideration, Reagan became the first President ever to transfer power formally to his Vice President. The one-page letter he signed was originally drafted in longhand by White House Counsel Fred Fielding in consultation with Attorney General Edwin Meese and White House Chief of Staff Donald Regan. Based on the 25th Amendment to the Constitution, the letter was designed to provide an orderly conveyance of power while Reagan was under anesthesia and at the same time avoid causing undue public alarm by invoking the Constitution.

The 25th Amendment, which provides a model for presidential succession, was ratified in 1967. But Section 3 of the amendment, providing for transfer of power in the case of presidential disability, has never been used, even following the 1981 shooting, when Reagan was incapacitated for some five hours. The amendment allows a transfer of power when the President is "unable to discharge the powers and duties of his office." It outlines two procedures for doing this. The first calls for the President to write to the president pro tern of the Senate and the Speaker of the House declaring his incapacity, thereby giving the powers of his office to the Vice President on a temporary basis. Later the President may notify the leaders of Congress when he is able to resume his duties. The second procedure, which did not apply to the current situation, was designed for cases in which a President is not able to determine or declare that he is incapacitated. It permits the Cabinet or some other body designated by Congress to take power from the President if he is unable to function.

Reagan's letter was a deliberately vague attempt to accomplish the purpose of the amendment without formally invoking it. For practical purposes, the constitutional provision was in effect when Bush was made acting President. But the text of the letter explained the President's reluctance to implement the amendment: "I am mindful," the letter says, "of the uncertainties of its application to such brief and temporary periods of incapacity. I do not believe that the drafters of this amendment intended its application to situations such as the instant one."

The letter went on to say that "consistent with my longstanding arrangement with Vice President George Bush, and not intending to set a precedent," Bush was authorized to discharge the powers of the presidency while Reagan was under anesthesia. Saturday evening, after Reagan was once again alert, he signed a second letter that was delivered to Congress affirming his intention to resume his duties. This informal, rather nebulous process carried out by the White House closely paralleled the formal constitutional procedure. "It may not be a formal invocation of the 25th Amendment," said former White House Communications Director David Gergen, "but if it's not, it's a close country cousin."

Legal, political and psychological reasons were behind the President's caution. In addition to their concern about unduly alarming the nation, White House aides felt they were in uncharted legal waters. Chief of Staff Regan, White House Counsel Fielding and Reagan all believed that the amendment was designed for a longer, more debilitating illness than this one appears to be. They did not want a Reagan precedent to pressure future Presidents into using the amendment on inconsequential occasions--when, say, a President was under anesthesia merely to have some wisdom teeth removed.

The Administration was certainly aware that a standing procedure called the National Command Authority allows the Vice President to assume temporary power in military emergencies. If a President is incapable of making a crucial decision, the NCA automatically devolves responsibility to the Vice President and then to the Secretary of Defense. Bush is also chairman of what was called the Crisis Management Team, which is now known as the Special Situations Group. The Vice President, the White House felt, was therefore already in place to preside over any crisis.

By resorting to the Bethesda letter, Reagan and his staff were trying to have it both ways. The White House was dissatisfied with the formal nature of the 25th Amendment but was following the constitutional procedures. Fielding and Meese tried to frame the letter so that Reagan's delegation of power would appear as a single, isolated act based on a unique set of circumstances. But Reagan's situation is not unique, and the letter does set a precedent in practical, if not legal terms. New York University Law Professor Bernard Schwartz says that the problem of presidential illnesses and the uncertainty they create about who is in charge were instrumental in passing the amendment.

Former Indiana Senator Birch Bayh, who drafted the amendment, contends that the President invoked the Constitution despite tiptoeing around it. "He had to invoke the 25th," said Bayh, now practicing law in Washington. "There's no other authority for this act. It's all well and good to say the drafters didn't intend it to cover these short-lived situations. But it's the only way to do what he did."

Precedent or not, Reagan's letter fore-closed any repetition of the disarray that occurred in the Administration after Reagan was shot in 1981. White House aides recalled with dismay the situation when the President lay wounded and a jittery Secretary of State Alexander Haig marched before television cameras in the White House press room to announce, "I am in control here," thereby raising fears rather than allaying them.

At the time, the question of who actually was in charge seemed not to have an answer. During the crisis, White House Aide Richard Darman felt compelled to hide the legal papers that had been drafted in the event that Congress or the Cabinet might have to decide whether the President was unable to function. With the assent of then Chief of Staff James Baker, Darman locked the documents away in order to forestall just such a possibility.

Fielding, who was involved in the 1981 deliberations, thought the White House erred in not having the President delegate power to Bush. This time, he wanted it to be clear that the President's power would rest, however briefly, with the Vice President and only the Vice President. Fielding and other senior members of the Administration also wanted to have a procedure that could remain in effect in the event that Reagan developed complications after his surgery.

As things turned out, the precautions proved unnecessary. During the 7 hr. 54 min. when Bush was acting President, he signed no laws, made no appointments, authorized no military actions. Bush did not go to his White House office, but stayed at his residence on Massachusetts Avenue and waited, like everyone else, for Reagan to emerge from the anesthesia.

The moment Reagan signed the letter stating that he was again fully capable of discharging the duties of his office, the powers of the presidency returned to him automatically. Reagan's aides, meanwhile, were going about the task of setting up a mini-White House in Bethesda hospital. The job was not a totally unfamiliar one. In 1981, during Reagan's twelve-day stay at George Washington University Hospital, the President's top aides met with him regularly, though his work schedule was drastically curtailed. Reagan was not himself for nearly a month; while major decision making did slow down, the day-to-day working of the White House went on much as before.

If the President's recovery proceeds as his doctors expect, the Government will be run from Bethesda for about ten days. As in 1981, Bush would occupy the "vacant chair" at the White House, acting as chairman of any Cabinet and National Security Council meetings. Meanwhile, senior White House aides will conduct the daily operations of the Government. Regan has ordered his staff not to overload the President with work.

No one was underestimating Reagan's proven powers of recuperation. White House Spokesman Larry Speakes boasted of the President's vigor and expressed confidence that he would soon be conducting business as usual. The President's schedule for this week was already light. He was to have been host at a diplomatic corps reception on the South Lawn and a swearing-in ceremony for two members of the Council of Economic Advisers. Other events included a lunch with leading medical scientists, something Reagan might now find of particular interest. For the most part, the First Lady will handle the ceremonial duties in place of her husband. But of course there are some things only the President can do, and White House aides are certain that the President will exercise his powers of persuasion from his bed in Bethesda.

Reagan's efforts will be necessary because this week is considered a critical one for the budget battle. Reagan was to have met with the congressional leadership on Tuesday, followed by Republican members of the Senate Finance Committee on Wednesday and then their Democratic counterparts on Thursday. While some suspect that he might now be hampered by his condition, others suggest that a "sympathy factor" could boost Reagan's chances of getting what he wants. Reagan's hospitalization in 1981 also took place at a crucial period in the President's fight for his first budget on Capitol Hill. At the time, it was thought that sympathy and admiration for Reagan's good-humored stoutheartedness helped to swing votes his way. That may happen again this year. One top White House aide, however, dismissed the idea. "You know where you find sympathy in this town," he said caustically. "In the dictionary." --By Richard Stengel. Reported by Laurence I. Barrett and Barrett Seaman/Washington

With reporting by Reported by Laurence I. Barrett, Barrett Seaman/Washington