Monthly Archives: October 2020

Ten-Dollar Bills and Letters of Congratulation: The Unlikely Journey of the Sick Chicken Case

Miscellany, Political history, Presidential History

I originally wrote this as a seminar paper for a graduate level American history class at Murray State Univeristy in 2004. I presented it at the annual Phi Alpha Theta conference, held in conjunction with the American Historical Association conference, in Philadelphia in 2006. I am now publishing it to American Pathos.

When Franklin Delano Roosevelt took the oath of office as president, on a rainy March 4, 1933, and dramatically declared to a desperate public that the only thing it had to fear was “fear itself,” few could have imagined that a major cornerstone of Roosevelt’s economic plans would, or could, fall victim to legal arguments involving, in part, the manner in which chickens could be pulled from a coop. That is what happened two years later, however, when four brothers, Joseph, Alex, Martin, and Aaron Schechter, businessmen from one of the grittiest and most notoriously corrupt enterprises in New York, the “live poultry” trade, were indicted, tried, and convicted of violating codes established under Roosevelt’s National Industrial Recovery Act. The United States Supreme Court case that eventually resulted, A.L.A. Schechter Poultry Corporation v. United States, was a stunning victory for the Schechters and for opponents of the New Deal. In one fell swoop, it invalidated the National Industrial Recovery Act, the hundreds of codes that had been fashioned in response to it, and the entire regulatory philosophy upon which it rested. The decision is regularly blamed—or credited—with undermining the major thrust of the New Deal and for spurring Roosevelt, in 1937, to pursue his costly “Court-Packing” initiative. Continue reading Ten-Dollar Bills and Letters of Congratulation: The Unlikely Journey of the Sick Chicken Case →

Your Guide to the Twenty-Fifth Amendment to the United States Constitution

Miscellany

I published this as a Facebook note in 2017, when impeachment and related topics were in the air. That was early in the Trump administration and before anyone had ever heard of covid-19. Now, a few people are asking me about the Twenty-Fifth Amendment again, so I have decided to post it to my blog (Facebook is discontinuing “notes”) and republish.

With President Trump’s various difficulties and the realization that removing a president of the United States from office through impeachment is both difficult and unprecedented, there has been a flurry of discussion about the Twenty-Fifth Amendment to the Constitution.

Several people have asked me about the particulars of this amendment, so here I will attempt to explain it in plain language the way I would explain it to students.

Serious discussion about what became the Twenty-Fifth Amendment began after President Eisenhower’s three major illnesses, one of them a heart attack, in the 1950s. When the aging Eisenhower left the office to a man in his forties, in 1961, interest in the topic died away somewhat, though not completely. After the Kennedy assassination, Congress and the executive branch had to confront a troubling question: what if Kennedy had survived his massive head wound? Already, the country had endured several instances of serious presidential disability, most notably President Garfield’s 80 day decline after his shooting in 1881, President Wilson’s 1919 stroke and its 18-month aftermath, and President Eisenhower’s illnesses. The original constitutional provisions for presidential disability were inadequate and ambiguous, leaving it unclear whether or how the vice president was to intervene. Accordingly, Vice President Arthur refused to do anything at all as Garfield lay dying, and Vice President Marshall followed suit while Wilson was ill. Vice President Nixon met with Eisenhower’s cabinet during the latter’s illnesses and was widely praised for his low-key but effective efforts. In the dangerous Cold War period, though, it was clear that some kind of formal arrangement was necessary, one that would settle all questions of presidential succession and disability.

In 1965, Congress proposed the Twenty-Fifth Amendment. In 1967, the 38th state legislature ratified the amendment, and it became part of the Constitution.

The Twenty-Fifth Amendment has four sections: The first section simply states that if the president dies, resigns, or is removed from office, the vice president becomes president. This was what had been done since the first presidential vacancy in 1841, but the Constitution was actually ambiguous as to whether the vice president was to become president or was somehow to merely act as president. This section settled the question once and for all. It is assumed that it also settled the question of the presidential oath. It is now clear that the vice president becomes president instantly if there is no president; the oath is not an impediment to his carrying out his duties, though a new president would presumably take the oath anyway, for appearances’ sake, as soon as he could do so. The congressional framers of the amendment wanted no repeats of November 22, 1963, when an ostensibly leaderless nation lived in danger for two hours while people chased down the presidential oath and a federal judge.

The second section provided a means of filling a vacancy in the vice presidency. Throughout history, there had been 16 such vacancies (there have been 18 to the current date). Eight vice presidents had acceded to the presidency, leaving the vice presidency vacant, seven others had died while vice president, and one had resigned. In total, about 40 years had passed with no vice president—about 22% of the period since the beginning of the American presidency.

After the ratification of the Twenty-Fifth Amendment, the president of the United States was empowered to appoint a new vice president whenever that office was vacant; the appointment would require the approval of both houses of Congress. This was the procedure President Nixon used to appoint Vice President Ford in 1973, after the resignation of Vice President Agnew. When Ford became president the following year, he used the same procedure to appoint Vice President Rockefeller.

The third section of the amendment provides a way for the president of the United States to declare, of his own volition, that he is temporarily unable to fulfill the duties of his office. Though the amendment does not specify, this section is understood to address cases of incapacitating but presumably temporary illness of which the president, himself, is aware; surgery; or some kind of family trauma (the loss of a spouse or a child, for instance) requiring that the president have time to grieve and recover emotionally.

The procedures for activating Section 3 of the amendment are specific and relatively straightforward. If the president decides that he is, or will be, temporarily unable to perform his duties, he signs two identical letters to that effect, and “transmits” one to the speaker of the House of Representatives and one to the president pro tempore of the Senate. At that moment, all the president’s powers are transferred to the vice president of the United States, who becomes acting president of the United States. This arrangement remains in place until the now powerless president sends new letters to the speaker of the House and the president pro tempore of the Senate, declaring his inability over, at which time he resumes the powers of the presidency.

The first person ever to serve as acting president of the United States, pursuant to Section 3 of the Twenty-Fifth Amendment, was George H. W. Bush. He was acting president for several hours during President Ronald Reagan’s colon cancer surgery in 1985. Vice President Dick Cheney served twice as acting president, for a few hours each time, during minor surgical procedures performed on President George W. Bush.

The provision of the Twenty-Fifth Amendment that is currently generating discussion is Section 4, which provides a way for other officials to declare the president of the United States unable to perform his duties. Section 4 anticipates a situation in which an unconscious or severely physically (or perhaps mentally) compromised president is unable to recognize his incapacity and/or unable to carry out the procedures outlined in Section 3.

Section 4 empowers the vice president and a majority of the “principle heads of the executive departments” (the Cabinet members), or some other group of people that Congress might appoint for such a purpose, to transmit to the speaker of the House of Representatives and the president pro tempore of the Senate, letters declaring that the president is unable to perform the duties of his office. In such an event, the president’s powers would immediately devolve on the vice president, who would become acting president of the United States, just as outlined in Section 3. The president would remain in his position but would be shorn of his powers.

The writers of Section 4 anticipated the obvious: that such a procedure might be used for nefarious purposes, and that the president of the United States might challenge the loss of his powers. The section states that the president can easily regain his powers by simply challenging their transfer, and waiting. To do so, the president need only sign letters to the speaker of the House and the president pro tempore of the Senate, stating “that no inability exists.” After a waiting period of four days, during which the vice president continues as acting president, if no further action is taken by the vice president and the Cabinet (or the vice president and the oft-cited “other body”), the president regains his powers.

When the president signs and transmits the letters declaring that he is not disabled, the vice president and the cabinet (or Congress’s “other body” if it has created one) would have a complex choice to make. They would have to decide whether to “go to the wall” in their insistence that the president is unable to perform his duties. From the time of the president’s challenge to their actions, they would have four days in which to sign yet another pair of letters to the speaker and the president pro tempore, insisting that the president, contrary to his claims, is, indeed, unable to perform the duties of his office. At that point, the dispute would move to Congress.

Section 4 states that if the vice president and his allies challenge the president’s resumption of his powers, Congress is to assemble within 48 hours if it is not already in session, to resolve the question—obviously a grave constitutional crisis. Congress has up to 21 days, during which the vice president will continue as acting president, to determine, by a two-thirds vote of both houses, that the president is unable to perform his duties. If they so decide within the 21 days, the vice president will continue to act as president for an indefinite period (the remainder of the term, or perhaps until Congress agrees with the president in some future challenge—the amendment is unclear). If Congress does not affirmatively declare (by a two-thirds vote of both houses), within 21 day of the president’s adversaries’ written rebuttal to his counterclaim, that the president is, indeed, unable to perform the duties of his office, then the president shall resume his powers.

Discussion of Section 4:

  • In the current hyper-partisan context, note that the impeachment process (which is for instances of presidential criminality) requires a simple majority of the House for impeachment and a two-thirds vote of the Senate for conviction and removal. The Twenty-Fifth Amendment’s Section 4 provisions to strip the president of his powers but not his office, on the other hand, require, in their final phases, two-thirds majority votes in both houses, if the transfer of the president’s powers to the vice president is to be made permanent or even semi-permanent. Therefore, if the ultimate goal is the cynical one of simply depriving Donald Trump of power—getting him out of the way—the notoriously difficult impeachment route is effectively easier than the Twenty-Fifth Amendment route.
  • Unlike the vice president, who cannot be fired by the president or anyone, the cabinet members serve at the pleasure of the president. Therefore, any collusion between them and the vice president would have to be planned in extreme secrecy, or they could easily be purged by the president before it comes to fruition.
  • In the final analysis, the Section 4 provisions of the Twenty-Fifth Amendment, though complex and disruptive if carried to their legal extremes, ultimately favor the word of the duly-installed president of the United States over that of the people trying to strip him of his powers. Any attempt to invoke these provisions simply to “get rid” of an unpopular president would probably be met with enough cold feet in Congress to cause it to fail, given the historical difficulty of achieving two-thirds majorities in both houses.
  • Though there is obviously no precedent for such a thing, it is always possible that the federal courts could intervene to stop or reverse any perceived “misuse” of the Twenty-Fifth Amendment, or even of the Constitution’s impeachment provisions. This is speculation, of course, but neither procedure was intended to remove or impede a merely controversial or unpopular president. While the courts might invoke the Political Question Doctrine, in effect saying it is none of the judicial branch’s business how Congress deals with President Trump, there is at least a theoretical possibility that the judges could seek to protect the Constitution by halting or reversing Congress’s actions. There is simply no way to know how it might go.

As always, the ancient Chinese curse seems relevant: May you live in interesting times.

On the Impending Public Release of the Warren G. Harding-Carrie Phillips Love Letters

Miscellany

I originally published this piece as a Facebook “note” in 2014. Facebook is discontinuing notes, so I am now moving it to American Pathos.

On Tuesday, the Library of Congress will release, to considerable fanfare, one of the most contested, yet somehow least known, presidential document collections in American history: the long-suppressed love letters of Warren G. Harding to his mistress, Carrie Phillips.

The letters have a complex history.

Jim and Carrie (Fulton) Phillips were neighbors of Warren and Florence Harding’s in the first decade of the twentieth century. The two couples became friends, even touring Europe together. In 1904, the Phillipses’ young son died. Warren had never particularly loved Florence, who was older than he, sickly, and something of a scold, and in the emotional aftermath of the child’s death he and Carrie fell in love. For several years, the friendship between the two couples continued, but eventually Florence caught on and shut Carrie out of her life. Warren, though, was an increasingly busy and important man, first in Ohio politics and then nationally, and he was always on the road, so the affair continued and deepened.

In the early 1910s, the Phillipses traveled to Germany, which was at the height of its power and glory. Carrie fell in love, to the point of obsession, with all things German and remained there for some time. Meanwhile, Warren was elected to the United States Senate from Ohio. Carrie returned to America, but her new love of German culture, and Warren’s position in the Senate, set the two up for a clash when World War I broke out in the summer of 1914. The United States struggled to remain neutral, but U.S.-German relations deteriorated quickly after mid-1915. Warren continued to pour out his heart to Carrie, but his passionate letters were tinged with near-panic as Carrie refused to moderate her outspoken pro-German sentiments. She even began to openly threaten Warren should he vote for a war declaration against her adopted homeland.

In April 1917, the United States declared war against Germany, and Warren, who voted for the war, soon realized that the Wilson administration’s intelligence agencies were investigating Carrie. Worse, there was much to investigate. Carrie and Jim’s daughter was openly courting the cousin of a German heiress who was a known spy. Federal agents arrested the heiress in a Chattanooga hotel room while she was plying her feminine charms to extract troop movement information from a young American soldier stationed at Fort Oglethorpe.

Despite all of this, Warren, and even Carrie, somehow stayed out of trouble, and they continued to see one another at times, but Carrie never recovered, emotionally, from Germany’s loss in the war. For the first weeks after the Armistice, most people assumed that former president Theodore Roosevelt would be the Republican nominee in 1920. Roosevelt died suddenly in January 1919, however, and Warren’s star began to rise in what was certain to be a Republican campaign cycle. Carrie did not want Warren to be president, and it is at that point that the letters begin to suggest that Carrie was blackmailing Warren. In 1920, the Phillipses took a tour around the world, allegedly financed by the Republican National Committee (there is some dispute on this point), and Warren was elected president in a popular and electoral landslide over James M. Cox.

There is little evidence of correspondence between Warren and Carrie after Harding assumed the presidency in March 1921. He died suddenly only two and a half years later. Carrie remained in Marion, Ohio, but became estranged from Jim, who took to the bottle. She was again investigated for disloyalty during World War II. By the mid 1950s Carrie was an eccentric recluse. Her home fell into disrepair and her dogs—German shepherds—were poorly cared for. Eventually she was placed in a retirement home. The lawyer in charge of her estate, Don Williamson, found a sealed closet, and in it a box of letters, nearly a thousand pages, from Warren G. Harding. The letters were scattered, disjointed, undated, and thus wildly confusing. They were also shot through with florid expressions of love, and some were sexually explicit.

For several years, rumors circulated around town that Williamson had the letters. By 1963, the Harding Memorial Association, a group of local relatives and notables in Marion, was preparing for the late president’s 1965 centennial. In conjunction with this, the Association was planning a 1964 transfer of all of its Harding documents to the Ohio Historical Society. In the midst of this, Francis Russell of Massachusetts, a writer, one of several who were planning anniversary biographies of the much-maligned Harding, arrived in Marion. In an old book about the 1920s, Russell had read that during the 1920 Harding campaign all the store fronts in Marion were decorated—all, that is, except the store owned by Jim Phillips. Russell wondered why and soon found out about the Phillips affair and the rumor that Williamson had the letters. Russell tracked Williamson down and saw the documents himself, and that is when the great legal drama began. Russell convinced Williamson to transfer the letters to the Ohio Historical Society. Williamson agreed, and the cat was out of the bag. This set up a fight between Kenneth Duckett, an archivist at OHS, who genuinely wanted to preserve the letters for history; the OHS itself, which, as it turned out (or so Russell alleged) was something of a political arm of the Ohio Republican Party rather than a traditional historical depository; the Harding heirs, who wanted to suppress or destroy the letters; Russell, who wanted to be the first to use them; and American Heritage, to which Russell was a contributor.

Eventually, an easily manipulated state judge, relying on a highly questionable interpretation of copyright law, transferred the letters to the Harding Memorial Association. Duckett, however, had already made several microfilm copies, once actually having a fistfight at the copier when an OHS official tried to stop him, and had secreted the copies at various places around the country. Russell managed to get a a copy to American Heritage, but a court order forbade anyone to use the letters for any reason. Russell became so frustrated that, in 1968, he published his biography, The Shadow of Blooming Grove: Warren G. Harding in his Times, with long rows of hyphens replacing the alphabet characters of the Harding letters. In the end, a later court protected the letters by transferring them to the Library of Congress, where they were to remain under seal until July 2014, fifty years after the controversy began.

And here we are.

Despite many efforts at suppression and delay, the letters were not completely sealed. Russell had made notes in 1963, and a few stray but incomplete copies remained. In 2009, Cleveland attorney James Robenalt, whom I met first in 2011 and again last week, published The Harding Affair: Love and Espionage During the Great War, the only real study ever done of the incomplete letters. Robenalt believes, and I agree, that the letters, contrary to the long assessment of historians, show a Harding who was intelligent, hard-working, engaged, and scrupulously patriotic. Robenalt is calling for a professional reassessment of Harding and his place in history, and I support that effort. That is why I am now associated with the Warren G. Harding Symposium in Marion, and why I have traveled to that event three out of the last four years.

If you find this topic interesting, I urge you to pay attention to the news out of the Library of Congress on Tuesday. However, I would not expect too much in the way of serious treatment of the letters. The media will focus on sex and pet names and the like, and there will be little real analysis. Current politics will also come into play, as there has always been a Progressive political bias among professional historians against the three Republican presidents who served between Wilson and Franklin Roosevelt.

You may want to read Robenalt’s book, The Harding Affair: Love and Espionage During the Great War, which is readily available. You can also consult Robenalt’s web site, www.thehardingaffair.com [2020 note: the link is now dead]. Next year will be the 150th anniversary of Harding’s birth, so that, in conjunction with the release of the letters, will probably lead to a spate of new books.

As for me, you know that I live for this kind of thing, so I welcome any discussion of it on Facebook. Thanks for listening.

—Kevin Brewer, July 27, 2014

Empires and Small Towns: Of Edward Gibbon, Sonny Melton, and Elton John

Memorials
I originally published this tribute as a Facebook note shortly after Sonny’s death. Facebook is phasing out notes, so I am now migrating it, slightly modified, to American Pathos.

Tonight, I sat pondering the tragedy that befell my community 20 hours ago, when Stephen Paddock unleashed his hate, or bitterness, or pain, or madness, or whatever upon the concertgoers in Las Vegas, taking the lives of Sonny Melton and so many others. As I did, someone posted an image of Sonny’s last Facebook check-in: a little red teardrop of a marker on a map of the city.

It is said that Edward Gibbon first conceived his magisterial History of the Decline and Fall of the Roman Empire in October 1764, as he “sat musing amid the ruins” of Rome, “while the barefooted friars were singing vespers in the Temple of Jupiter.” Gibbon was trying to understand what crumbled Rome. I’m no Edward Gibbon, but I do feel as though I am sitting amid ruins, not of a civilization, but of many lives. Were he here, looking over my shoulder, Sonny would roll his eyes and grin at this overblown allusion, but I think he would appreciate my sincerity, and I know he would not be surprised that I had written it.

The image of dots on a map will not leave me, and it occurs to me that each of us is a dot moving about. I am. You are. Sonny Melton was. The gunman, Paddock, was as well.
Paddock’s dot first appeared on the map some 64 years ago. Early on, his story is a tangle of confusion and rumor, and it may never be clarified. He roamed the earth for 35 years before Sonny Melton’s dot appeared in the summer of 1988. Since then, their two markers, each oblivious to the other, have moved on their respective paths, usually distant, sometimes closer, but never, so far as we know, approaching, until they converged in a gaudy desert oasis on Sunday night.

It is, of course, a disturbing notion that somewhere out there, sharing the world with us, is a person we know not who holds the key to our destiny. What would we do if we knew? Could we change things? Would we? In the course of a lifetime, each of us meets so many people. Nearly all of them seem harmless, and nearly all of them are. Abraham Lincoln once watched John Wilkes Booth perform in The Marble Heart, and according to legend perceived that Booth “looked a little sharp” toward him at one point in the play. Since we cannot identify all the dangers that swarm around us and since it is impossible to live the kind of happy and meaningful life that Sonny Melton lived while thinking about it, we simply tune it out and hope that all will come right. Ironically, in this case neither man ever knew that the other existed, yet their dots are now permanently fixed, side-by-side, on the same acre of Nevada.

Gibbon’s famous tale of his afternoon in Rome is, I suppose, too lofty, too high-culture an image for what has happened to us here. It would make the humble and good-natured Sonny blush, and it is too majestic for the loathsome man who took him from us. Another, more contemporary quotation from the world of popular culture is needed. One comes to mind immediately and from a source that Sonny would have approved. It is the line Sir Elton John sang in an effort to understand and explain the feckless Mark David Chapman’s senseless murder of John Lennon:

“It’s funny how one insect can damage so much grain.”

KB