The situation unfolding in the US leads Peter Dunne to question whether we are as secure as we may think from something similar happening here after a fraught future election, and whether we need better protections in place to deal with Prime Ministerial incapacity

Ever since President William Harrison spoke for far too long at his Inauguration on a bitterly cold Washington day in March 1841, catching a chill that led to his death a month later, before he had ever made an Executive decision, the American system has pondered from time to time what to do in a situation where the President becomes too ill or incapacitated to carry out their responsibilities.

In Harrison’s case, it was straightforward. Under the Constitution John Tyler became the first Vice President to succeed to the office of President.

But there have been other cases, which have been more problematic, where the illness or impairment of the President has been less clear-cut. Usually, they have been resolved by the President agreeing to stand aside temporarily in favour of the Vice President until such time as the President has been able to resume full duties. It was not until 1965 that arrangements for dealing with such situations were formalised by the 25th Amendment to the Constitution.

The final spur was the Kennedy assassination in 1963 and the thought that had Kennedy survived but been severely brain impaired, there would have been no easy way to remove him from office.

That amendment had been developed in response to the possibility of a President being so severely incapacitated through illness or disability as to be unable to make a cognitive decision about standing aside, while still retaining the full authority of the Presidency.

The final spur was the Kennedy assassination in 1963 and the thought that had Kennedy survived but been severely brain impaired, there would have been no easy way to remove him from office.

Under the 25th Amendment a specified process was established whereby it could be determined that a President was no longer fit to carry out the “powers and duties” of his office, and so could be replaced, either temporarily or permanently by the Vice President. Since then, it has been used from time to time when Presidents have undergone specific medical procedures that have taken them out of circulation for a few days.

Ever since President Trump came to office there has been loose speculation from to time about whether some of his more bizarre actions might lead to the invocation of the 25th Amendment. So far, and not surprisingly, they have amounted to little more than idle musings.

However, the question has been raised again in the wake of President Trump’s seeming unwillingness to accept the reality of the recent Presidential election result, and co-operate with and authorise the funding of and official support for the establishment of the incoming Biden Administration. The glaring problem that overlooks though is that even if the 25th Amendment could be successfully applied, the transfer of power would be to Vice President Pence who has appeared from time to time to be just as unhinged as the President, so the exercise would be pointless.

The only Constitutional resolution of the current American impasse will be the democratic one of the final certification of the vote count, the formal meeting of the Electoral College and the declaration of its result, followed by the Inauguration of President Biden on January 20 next year.  

Nevertheless, the issue of how to handle Presidential disability does have implications here. There have been situations over time where seriously impaired Prime Ministers have remained in office long beyond when they should have resigned.

The elderly and unwell Sir Joseph Ward unexpectedly became Prime Minister again in December 1928, 16 years after he had last held the position. According to the New Zealand Dictionary of Biography, “By September 1929 he was described as being ‘in the last stages of decrepitude’ and a few weeks later he had a series of heart attacks.” Shortly thereafter he relocated to Rotorua, where, in between daily visits to the mineral baths, he carried on as Prime Minister until 1930, when, following a deputation from his Ministers, he agreed to stand down at the end of May, dying just a few weeks later.

In 1939-1940 Labour Ministers kept Michael Joseph Savage’s rapidly advancing terminal cancer from the public, continually commenting that the Prime Minister was in full control and in good health. The severity of his illness was only revealed a few days before he died in March 1940 when it was politically convenient to do so, to ensure the expulsion of his sternest internal critic, John A. Lee, from the Labour Party.

Just over a decade later senior National Party Ministers and officials had to persuade long-serving Prime Minister Sidney Holland that it was time to stand down. The New Zealand Dictionary of Biography reports that by 1956 “his memory (had) deteriorated and he (had) lost much of his drive and eloquence. During the Suez crisis of October 1956 he suffered what appeared to be a mild heart attack or stroke, but continued working in his office for 48 hours” afterwards. He eventually announced his resignation in a rambling speech with several false starts to the National Party Conference in September 1957, just over nine weeks before that year’s General Election which National lost.

During Norman Kirk’s lengthy illnesses in 1974 concern was expressed frequently about the Prime Minister’s health and whether he could recover, although there was no serious suggestion that his capacities were failing, and that he should stand aside. While his ill health had not been kept from the public his death in August 1974 still came as a shock, and occasioned outpourings of grief not seen for a public figure since Savage’s death in 1940.

… the Muldoon case is probably closest to the situation now unfolding in the United States.

The most recent example is perhaps the most well-known. It relates to the conduct of Sir Robert Muldoon in the days after the 1984 election, and what became known as the Devaluation Crisis. By convention, in the hiatus between a defeated government leaving and the new one taking office, the outgoing government co-operates fully with the wishes of the incoming government, if decisions are required on major matters of policy.

In 1984, giving the mounting economic crisis it was about to inherit, the incoming Lange Labour Government decided an immediate devaluation of the New Zealand dollar was required. It asked outgoing Prime Minister Muldoon to facilitate this, to which Muldoon (who was also Minister of Finance) replied “I am not going to devalue, as long as I am Minister of Finance” He added that he hoped that after reflection Prime Minister-elect Lange would agree with him. Muldoon eventually relented after a revolt from senior Ministers who threatened to install Deputy Prime Minister Jim McLay as Prime Minister for the sole purpose of giving effect to Lange’s request.

Of all these situations, the Muldoon case is probably closest to the situation now unfolding in the United States. In words that would not be out of place with that Prime Minister-elect Lange commented of Muldoon at the time, “This Prime Minister outgoing, beaten, has, in the course of one television interview tried to do more damage to the New Zealand economy than any statement ever made. He has actually alerted the world to a crisis. And like King Canute he stands there and says everyone is wrong but me.”

The remarkable thing about all these situations is that they were left to the politicians themselves to resolve, and to the hope that ultimately goodwill and common-sense would prevail. Even more remarkable is that that is still the case today, should a similar circumstance arise.

New Zealand has no other way of dealing with Prime Ministers who for health or other reasons become dysfunctional. Neither the Constitution Act 1986 nor the Cabinet Manual contain any provisions akin to the 25th Amendment of the United States Constitution.

Over recent days many people in America and elsewhere have been scratching their heads at President Trump’s behaviour. Some have even suggested that we may be witnessing the opening stages of a constitutional coup to keep the President in office, although that still seems far-fetched.

The more immediate implication for New Zealand is whether we are as secure as we may think from such a situation happening here after a fraught future election. 

What is certain is that it will be too late to start thinking about it when and if it happens. Far better to have appropriate protections in place now, which is why the question of how to deal with Prime Ministerial incapacity is one we should be taking far more seriously.

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