The USS Caine was on the verge of foundering, nearly drowning in the waves of a typhoon in the middle of the Pacific, and Capt. Queeg looked scared.
The neurotic naval officer, played by Humphrey Bogart in the 1954 Oscar-nominated movie “The Caine Mutiny,” clung to the ship like it was going under while his crew yelled out to him for orders. It seemed Queeg was testing their last nerve.
The crew, as of late, believed the captain was out of his mind. He had recently ordered a sweeping investigation into who ate a missing quart of strawberries from the kitchen, believing the apprehension of this strawberry thief was of singular importance. In a second fit of paranoia, Queeg ordered the sailors to search for a nonexistent secret key to the icebox, believing it would lead to the thief. Now the captain was frozen in fear — believing he had everything under control.
“Captain, I’m sorry, but you’re a sick man,” executive officer Stephen Maryk told him at the climax of the movie, based on the Pulitzer Prize-winning novel by Herman Wouk. “I’m relieving you as captain of this ship under Article 184.”
And with that, the captain lost his power.
The scene was unforgettable for Bogart’s bug-eyed portrayal of a man wielding power gone mad.
But for a certain group of lawyers and lawmakers in the 1950s and ’60s it was an unforgettable lesson as they sat down to draft the 25th Amendment, which provided an alternative to impeachment for removing an incapacitated president. They didn’t want a similar situation — an “Article 184″ in the amendment — where a vice president or others could simply usurp the commander-in-chief’s power at the mere utterance of the word “disabled,” explained John D. Feerick, professor and former dean of Fordham School of Law, who assisted in drafting the amendment in the 1960s.
The film was a “live depiction,” Feerick told The Washington Post, of the type of crisis that could arise if a president ever faced questions about physical or mental inabilities but disagreed completely with the judgment — a scenario unaccounted for in the Constitution’s impeachment clause, which allows removal of the president only after conviction by the Senate for “treason, bribery, or other high crimes and misdemeanors.”
The 25th Amendment, which was adopted on Feb. 10, 1967, in the wake of John F. Kennedy’s assassination, describes the procedures for replacing the president in the event that he or she dies, resigns, is temporarily unconscious or is found to be “unable” to carry out his or her powers and duties. That last part, Section 4 of the amendment, describes who makes the decision in the event the president won’t step aside himself: the cabinet and the vice president. Should the president disagree with them, Congress must vote to strip the president of his or her powers by two-thirds majority, protecting against internal political coups, Feerick said. The president can also resume his powers as long as the cabinet and vice president agree he is able.
But what the amendment doesn’t provide is any clear definition of what it means to be a “disabled” president or one “unable to discharge” duties. The ambiguity has fueled debates for decades — perhaps no more so than now.
Since President Trump has taken office, Section 4 of the 25th Amendment has emerged as a favorite hypothetical among his political adversaries. Most recently, the anonymous “senior administration official” who authored the New York Times op-ed, professing “I Am Part of the Resistance Inside the Trump Administration,” suggested there had been “whispers” within the cabinet about invoking the 25th Amendment against Trump, painting the president as incompetent and impetuous. On Sunday, Vice President Pence went on CBS’s “Face the Nation” hoping to end the speculation and denying that he had ever been apart of any 25th Amendment talk.
“There’s never been as much discussion about the amendment in the disability context than in the last two years,” Feerick said. “The one thing that I see in that is that this important part of the Constitution” has received more attention. “It’s a serious part of the Constitution. It protects the office of the president, and it makes it very difficult to remove a president.”
So how would a president be declared “disabled” — and importantly, by whom?
The impact of “The Caine Mutiny,” though small in the grand scheme, is felt the most here.
The question of the meaning of “incapacity” and “disability,” and who’s to judge it, was posed in 1787 during the Constitutional Convention that drafted the document. But the words, while raised, never made it into the text. And for more than 175 years nobody cared to answer those original questions — even after Woodrow Wilson, after suffering a stroke, was so ill during the last segment of his term that he did not meet with his cabinet for weeks as he hid the extent of his disability.
Deliberations finally began in earnest in the 1950s, as President Dwight D. Eisenhower fell ill three separate times. During a 1956 hearing on the “problem of presidential inability” before the House Committee on the Judiciary, Arthur E. Sutherland, a Harvard law professor, described how “The Caine Mutiny” shaped his understanding of that problem, particularly as it relates to mental inability.
He had stayed up reading the “bully novel” until 2 a.m., he told the committee (See pages 79 to 80).
“I do not in anywise say this lightly, nor intend to depreciate the solemnity of the problems that face this committee, but as a matter of fact your committee’s deliberations have the same theme as the one in ‘The Caine Mutiny,'” Sutherland said.
“It is an excellent analogy,” said Committee Chairman Rep. Emanuel Celler (D-N.Y.) who along with Sen. Birch Bayh (D-Ind.) would be main drafters of the 25th Amendment in the years to come.
“Those of us who have practiced law have, I think, all seen ourselves in situations where some old friend or client has been stricken with mental illness,” Sutherland continued, “and to that unfortunate person the most resented blow is the suggestion that he is unable to function. This is the ultimate insult to a man’s intelligence: the suggestion that his intelligence is gone.”
Sutherland went on to advocate for an independent body to make such a judgment about a president’s capabilities, warning against the vice president having the discretion to “crown himself.”
Feerick would have a similar conversation about “The Caine Mutiny” with the American Bar Association during a 1964 Washington conference intended to assist Congress in drafting the 25th Amendment.
As he wrote in his 1965 book, “From Failing Hands: The Story of Presidential Succession,” the lawyers reached a consensus that the vice president shouldn’t be allowed to decide for himself whether his boss was disabled in part because of what happened in “The Caine Mutiny.” After executive officer Maryk told Captain Queeg he was a “sick man” and took over the ship, both Queeg and Maryk attempted to shout orders, causing confusion in a crisis.
Maryk went on trial for mutiny and was acquitted — thanks to Captain Queeg’s own rambling testimony, which included a tangent about stolen strawberries, which bolstered Maryk’s judgment.
“It will be recalled how much difficulty Executive Officer Stephen Maryk had in telling Captain Philip F. Queeg that he was disabled and that he (Maryk) was taking over pursuant to certain Naval Regulations,” Feerick wrote. ” . . . The point of this argument was that a Vice-President would be on precarious ground in a case where a President had become insane, refused to declare himself disabled, or disagreed with the decision of the Vice-President. In such a case, it was said, the Vice-President would be too reluctant to act or, if he did act, he might be labeled a usurper.”
Feerick said the framers of the 25th Amendment specifically decided not to define “inability” or “disability” because of the possibility that they could fail to anticipate unforeseen scenarios, resulting in too narrow of a definition. The decision was also political: The more specific the amendment became, the greater likelihood more states would disagree with the methods and wouldn’t ratify it, Feerick said.
The amendment was proposed by Congress in 1965 and was finally adopted in February 1967.
“It would be a mistake to say that the 25th Amendment is an easy remedy to deal with a president who might be unpopular,” Feerick said. “It wasn’t intended to deal with policy differences or unpopularity. You’re looking at the wrong place if you’re looking to the 25th Amendment to solve the differences.”
Here’s the complete wording of Section 4 of the 25th Amendment:
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.