Twenty-fifth Amendment to the United States Constitution

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Page 1 of Amendment XXV in the National Archives

Page 2 of the amendment

"Twenty-fifth Amendment" redirects here. For alternative meanings, see Twenty-fifth Amendment (disambiguation).

The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President, as well as responding to Presidential disabilities. It supersedes the ambiguous wording of Article II, Section 1, Clause 6 of the Constitution, which does not expressly state whether the Vice President becomes the President, as opposed to an Acting President, if the President dies, resigns, is removed from office or is otherwise unable to discharge the powers of the presidency.^[1] The Twenty-fifth Amendment was ratified in 1967.^[2]

Text

Background

Article II, Section 1, Clause 6 of the Constitution states:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

That clause was unclear regarding Presidential succession or inability; it did not state who had the power to declare a President incapacitated.^[1] Also, it did not provide a mechanism for filling a Vice Presidential vacancy prior to the next Presidential election. The vagueness of this clause caused difficulties many times before the Twenty-fifth Amendment's adoption:

• In 1841, President William Henry Harrison became the first U.S. President to die in office. Vice President John Tyler asserted that he had succeeded to the office of President, as opposed to only obtaining its powers and duties. He also declined to acknowledge documents referring to him as "Acting President". Despite some strong calls against it, Tyler took the oath of office, becoming the tenth President. Tyler's claim was not formally challenged and so the precedent of full succession was established.^[3] This became known as the "Tyler Precedent".

• There had been many occasions when a President was incapacitated. For example, following President Wilson's stroke no one officially assumed the Presidential powers and duties.^[1]

• The office of Vice President had been vacant sixteen times due to the death or resignation of either the President or Vice President.^[1]

All of these incidents made it evident that clearer guidelines were needed.^[1] There were two proposals for providing those guidelines:

Keating-Kefauver proposal

In 1963, Senator Kenneth Keating of New York proposed a Constitutional amendment which would have enabled the Congress to enact legislation providing for how to determine when a President is disabled, rather than, as the Twenty-fifth Amendment does, having the Constitution so provide.^[4] This proposal was based upon a recommendation of the American Bar Association in 1960.^[5]

The text of the proposal reads:^[6]

In case of the removal of the President from office or of his death or resignation, the said office shall devolve on the Vice President. In case of the inability of the President to discharge the powers and duties of the said office, the said powers and duties shall devolve on the Vice President, until the inability be removed. The Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then be President, or, in case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.

In the Senate, concerns were raised that the Congress could either abuse such authority^[7] or neglect to enact any such legislation after the adoption of this proposal.^[8] Tennessee Senator Estes Kefauver (the Chairman of the Senate Judiciary Committee's Subcommittee on Constitutional Amendments), a long-time advocate for addressing the disability question, spearheaded the effort until he died because of a heart attack on August 10, 1963.^[9][10]

Bayh-Celler proposal

On January 6, 1965, Senator Birch Bayh (Kefauver's successor as Chairman of the Subcommittee on Constitutional Amendments) proposed in the Senate and Representative Emanuel Celler (Chairman of the House Judiciary Committee) proposed in the House of Representatives what would become the Twenty-fifth Amendment. Their proposal specified the process by which a President could be declared disabled, thereby making the Vice President an Acting President, and by which he could regain the powers of that office. Also, their proposal provided a way to fill a vacancy in the office of Vice President before the next presidential election. This was as opposed to the Keating-Kefauver proposal, which did not provide for filling a vacancy in the office of Vice President prior to the next presidential election or itself provide a process for determining presidential disability. In 1964, the American Bar Association endorsed the type of proposal which Bayh and Celler advocated.^[11]

On February 19, the Senate passed the amendment, but the House passed a different version of the amendment on April 13. On July 6, after a conference committee ironed out differences between the versions,^[12] the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.^[13]

Proposal and ratification

The Congress proposed the Twenty-fifth Amendment on July 6, 1965 and the amendment was ratified by the following states:^[2]

1. Nebraska (July 12, 1965)
2. Wisconsin (July 13, 1965)
3. Oklahoma (July 16, 1965)
4. Massachusetts (August 9, 1965)
5. Pennsylvania (August 18, 1965)
6. Kentucky (September 15, 1965)
7. Arizona (September 22, 1965)
8. Michigan (October 5, 1965)
9. Indiana (October 20, 1965)
10. California (October 21, 1965)
11. Arkansas (November 4, 1965)
12. New Jersey (November 29, 1965)
13. Delaware (December 7, 1965)
14. Utah (January 17, 1966)
15. West Virginia (January 20, 1966)
16. Maine (January 24, 1966)
17. Rhode Island (January 28, 1966)
18. Colorado (February 3, 1966)
19. New Mexico (February 3, 1966)
20. Kansas (February 8, 1966)
21. Vermont (February 10, 1966)
22. Alaska (February 18, 1966)
23. Idaho (March 2, 1966)
24. Hawaii (March 3, 1966)
25. Virginia (March 8, 1966)
26. Mississippi (March 10, 1966)
27. New York (March 14, 1966)
28. Maryland (March 23, 1966)
29. Missouri (March 30, 1966)
30. New Hampshire (June 13, 1966)
31. Louisiana (July 5, 1966)
32. Tennessee (January 12, 1967)
33. Wyoming (January 25, 1967)
34. Washington (January 26, 1967)
35. Iowa (January 26, 1967)
36. Oregon (February 2, 1967)
37. Minnesota (February 10, 1967)
38. Nevada (February 10, 1967)

Ratification was completed on February 10, 1967. The amendment was subsequently ratified by the following states:

1. Connecticut (February 14, 1967)
2. Montana (February 15, 1967)
3. South Dakota (March 6, 1967)
4. Ohio (March 7, 1967)
5. Alabama (March 14, 1967)
6. North Carolina (March 22, 1967)
7. Illinois (March 22, 1967)
8. Texas (April 25, 1967)
9. Florida (May 25, 1967)

The following states have not ratified the amendment:

1. North Dakota
2. Georgia
3. South Carolina

Just six days after its submission, Nebraska and Wisconsin were the first states to ratify the amendment. On February 10, 1967, Minnesota and Nevada were the 37th and 38th states to ratify, respectively. On February 23, 1967, in a ceremony in the East Room of the White House, General Services Administrator Lawson Knott certified the amendment's adoption.

Effect

Section 1: Presidential succession

Section 1 codified the "Tyler Precedent" regarding when a President is removed from office, dies, or resigns. In any of those situations, the Vice President immediately becomes President.

Section 2: Vice Presidential vacancy

The Constitution did not provide for Vice Presidential vacancies until the Twenty-fifth Amendment was adopted. The Vice Presidency has been vacant several times due to death, resignation, or succession to the Presidency. Often these vacancies lasted for many years.

Under Section 2, whenever there is a vacancy in the office of Vice President, the President nominates a successor who becomes Vice President if confirmed by a majority vote of both Houses of the Congress.

Section 3: Presidential declaration

Section 3 provides that when the President transmits a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives, stating that he is unable to discharge the powers and duties of the Presidency, and until the President sends another written declaration to the aforementioned officers declaring himself able to resume discharging those powers and duties, the Vice President serves as Acting President.

Section 4: Vice Presidential-Cabinet declaration

Section 4 is the only part of the amendment never to have been invoked.^[14] It allows the Vice President, together with a majority of either "the principal officers of the executive departments" (i.e., the Cabinet) or of "such other body as Congress may by law provide", to declare the President disabled by submitting a written declaration to the President pro tempore and the Speaker of the House of Representatives. As with Section 3, the Vice President would become Acting President.

Section 4 is meant to be invoked if the President's incapacitation prevents him from discharging the duties of his office and to provide a written declaration to that effect. The President may resume exercising the Presidential duties by sending a written declaration to the President pro tempore and the Speaker of the House.

Should the Vice President and Cabinet remain unsatisfied with the President's condition, they may within four days of the President's declaration submit another declaration that the President is incapacitated. The Congress must then assemble within 48 hours if not in session. Within 21 days of assembling or of receiving the second declaration by the Vice President and the Cabinet, a two-thirds vote of each House of Congress is required to affirm the President as unfit. Upon this finding by the Congress, Section 4 states that the Vice President would "continue" to be Acting President. Should the Congress resolve the issue in favor of the President, or if the Congress makes no decision within the 21 days allotted, then the President would "resume" discharging all of the powers and duties of his office. The use of the words "continue" and "resume" imply that the Vice President remains Acting President while Congress deliberates.

However, the President may again submit a written declaration of recovery to the President pro tempore and the Speaker of the House. That declaration could be responded to by the Acting President and the Cabinet in the same way as stated earlier. The allotted 21-day Congressional procedure would start again.

Invocations

The Twenty-fifth Amendment has been invoked six times since its ratification.

Appointment of Gerald Ford as Vice President (1973)

On October 12, 1973, following Spiro Agnew's resignation two days earlier, President Richard Nixon nominated long-time Representative Gerald Ford of Michigan to succeed Agnew as Vice President.

The United States Senate voted 92–3 to confirm Ford on November 27 and, on December 6, the House of Representatives did the same by a vote of 387–35. Ford was sworn in later that day before a joint session of the United States Congress.^[15]

Succession of Gerald Ford to Presidency (1974)

Nixon's resignation letter, August 9, 1974.

President Richard Nixon resigned on August 9, 1974, resulting in Vice President Gerald Ford succeeding to the office of President. This made Gerald Ford the only person ever to be Vice President, and later President, without being elected to either office.^[16][17]

Appointment of Nelson Rockefeller as Vice President (1974)

When Gerald Ford became President, the Vice Presidency became vacant. On August 20, 1974, after having previously considered Melvin R. Laird and George H. W. Bush, President Ford nominated former New York Governor Nelson Rockefeller to succeed him as Vice President.

On December 10, 1974, Rockefeller was confirmed 90–7 by the Senate. On December 19, 1974 Rockefeller was confirmed 287–128 by the House and sworn into office.^[15]

Acting President George H. W. Bush (1985)

On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a pre-cancerous lesion called a villous adenoma was discovered. Upon being told by his physician (Dr. Edward Cattow) that he could undergo surgery immediately or in two to three weeks, Reagan elected to have it removed immediately.

That afternoon, Reagan consulted with White House counsel Fred Fielding by telephone, debating whether to invoke the amendment and, if so, whether such a transfer would set an undesirable precedent. Fielding and White House Chief of Staff Donald Regan both recommended that Reagan transfer power and two letters doing so were drafted: the first specifically referencing Section 3 of the Twenty-fifth Amendment, the second not.

At 10:32 a.m. on July 13, Reagan signed the second letter and ordered its delivery to the appropriate officers as required under the amendment.

Books such as The President Has Been Shot: Confusion, Disability and the 25th Amendment, by Herbert Abrams, and Reagan's autobiography, An American Life, argue Reagan's intent to transfer power to Bush was clear. Fielding himself adds:

I personally know he did intend to invoke the amendment, and he conveyed that to all of his staff and it was conveyed to the VP as well as the President of the Senate. He was also very firm in his wish not to create a precedent binding his successor.

Acting President Dick Cheney

2002

On June 29, 2002, President George W. Bush underwent a colonoscopy and chose to invoke the amendment, temporarily transferring his powers to Vice President Cheney.

The procedure began at 7:09 a.m EDT and ended at 7:29 a.m. EDT. Bush woke up twenty minutes later, but did not resume his presidential powers and duties until 9:24 a.m. EDT after the president's doctor, Richard Tubb, conducted an overall examination. Tubb said he recommended the additional time to make sure the sedative had no after effects.

Unlike Reagan's 1985 letter, Bush's 2002 letter specifically cited Section 3 in his letter transferring power.

2007

On July 21, 2007, President George W. Bush again underwent a colonoscopy and chose to invoke the amendment, temporarily transferring his powers to Vice President Cheney. President Bush invoked Section 3 at 7:16 a.m. EDT. He reclaimed his powers, pursuant to Section 3, at 9:21 a.m. EDT. As happened in 2002, Bush specifically cited Section 3 when he transferred the Presidential powers to the Vice President and when he reclaimed those powers.

Considered Section 4 invocations

There are two documented instances in which invocation of Section 4 of the Twenty-fifth Amendment was considered.

1981: Reagan assassination attempt

Following the assassination attempt on President Ronald Reagan on March 30, 1981, Vice President George H. W. Bush did not assume the role of Acting President under Section 4. In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked.^[18] Reagan was unable to invoke Section 3, because he was in surgery. Bush did not invoke Section 4, because he was on a plane returning from Texas. By the time Bush had arrived in Washington, Reagan was out of surgery.^[19]

1987: Reagan's alleged incapacity

Upon assuming the role of White House Chief of Staff in 1987, Howard Baker was advised by his predecessor's staff to be prepared for a possible invocation of the Twenty-fifth Amendment due to Reagan's perceived laziness and ineptitude.

According to the PBS program American Experience,

"What Baker's transition team was told by Donald Regan's staff that weekend shocked them. Reagan was 'inattentive, inept,' and 'lazy,' and Baker should be prepared to invoke the 25th Amendment to relieve him of his duties."

Reagan biographer Edmund Morris stated in an interview aired on the program,

"The incoming Baker people all decided to have a meeting with him on Monday, their first official meeting with the President, and to cluster around the table in the Cabinet room and watch him very, very closely to see how he behaved, to see if he was indeed losing his mental grip."

Morris went on to explain,

"...Reagan who was, of course, completely unaware that they were launching a death watch on him, came in stimulated by the press of all these new people and performed splendidly. At the end of the meeting, they figuratively threw up their hands realizing he was in perfect command of himself."^[20]

See also

• Acting President of the United States
• United States presidential line of succession
• Presidential Succession Act

Notes

References

• Constitution of the United States.
• The Constitution of the United States of America: Analysis and Interpretation, Johnny Kilman and George Costello (Eds). (2000)
• One Heartbeat Away by Birch Bayh (1968).
• CNN Transcript of White House press briefing re G.W. Bush temporary transfer of power to VP Cheney June 29, 2002 (URL accessed June 4, 2006).
• CNN Story of White House statement regarding G.W. Bush temporary transfer of power to VP Cheney July 21, 2007.
• The Twenty-Fifth Amendment: Its Complete History and Applications by John Feerick (1992).
• Presidential Inability and the Twenty-Fifth Amendment's Unexplored Removal Provisions by Scott Gant, Michigan State Law Review (1999), p. 791.
• Presidential Inability and Subjective Meaning by Adam R. F. Gustafson, Yale Law & Policy Review, vol. 27 (2009), p. 459.

External links

• National Archives: Twenty-fifth Amendment
• CRS Annotated Constitution: Twenty-fifth Amendment
• Amendment25.com