Twenty-fifth Amendment to the United States Constitution

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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 or 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 adopted on February 10, 1967.^[2]

Text

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. 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.^[3]

Background

The Twenty-fifth Amendment in the National Archives

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 and 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. Representative John Williams had previously suggested that the Vice President should become Acting President upon the death of the President.^[4] John Tyler asserted that he had succeeded to the presidency, as opposed to only obtaining its powers and duties. He also declined to acknowledge documents referring to him as "Acting President". Although he felt his vice presidential oath negated the need for the presidential oath, Tyler was persuaded that being formally sworn-in would clear up any doubts about his right to the office. Having done so, he then moved into the White House and assumed full presidential powers. Tyler's claim was not formally challenged, and both houses of Congress adopted a resolution confirming that Tyler was the tenth President of the United States, without any qualifiers. The precedent of full succession was thus established.^[5] This became known as the "Tyler Precedent".
• There had been occasions when a President was incapacitated. For example, following Woodrow Wilson's stroke no one officially assumed the Presidential powers and duties, in part because the First Lady, Edith Wilson, together with the White House Physician, Cary T. Grayson, covered up President Wilson's condition.^[1][6]
• The office of Vice President had been vacant sixteen times due to the death or resignation of the Vice President or his succession to the presidency.^[1] For example, there was no Vice President for nearly four years after the assassination of Abraham Lincoln. During the impeachment of Andrew Johnson there was no Vice President to succeed him. At that time, the Presidential Succession Act of 1792 provided that the President pro tempore of the Senate would succeed Johnson if he was removed from office.^[7] Had the impeachment trial of Andrew Johnson resulted in Johnson being removed from office, Senator Benjamin Wade, then the President pro tempore of the Senate, would have become acting president pending a special presidential election.^[8]

After having been temporarily incapacitated by several severe health problems, President Dwight D. Eisenhower attempted to clarify procedures through a signed agreement with Vice President Richard Nixon, drafted by Attorney General Herbert Brownell Jr.. However, this agreement did not have legal authority.^[9] Eisenhower had suffered a heart attack in September 1955 and intestinal problems requiring emergency surgery in July 1956; in each case until Eisenhower was able to resume his duties, Nixon presided over Cabinet meetings and along with Eisenhower aides kept the executive branch functioning and assured the public that the situation was under control, but Nixon made no effort to formally assume the status of Acting President.

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 Congress to enact legislation providing for how to determine when a President is "unable to discharge the powers and duties of his office", rather than, as the Twenty-fifth Amendment does, having the Constitution so provide.^[10] This proposal was based upon a recommendation of the American Bar Association in 1960.^[11]

The text of the proposal read:^[12]

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.

Senators raised concerns that the Congress could either abuse such authority^[13] or neglect to enact any such legislation after the adoption of this proposal.^[14] 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 of a heart attack on August 10, 1963.^[15][16] Senator Keating was defeated in the 1964 election, but Senator Roman Hruska of Nebraska took up Keating's cause as a new member of the Subcommittee on Constitutional Amendments.^[9]

Kennedy assassination

The assassination of John F. Kennedy showed the need for a clear way for determining presidential disability in the context of the Cold War.^[17] The new President, Lyndon B. Johnson, had once suffered a heart attack^[18] and – with the office of Vice President to remain vacant until the next term began on January 20, 1965 – the next two people in the line of succession were the 71-year-old Speaker of the House John McCormack^[17][19] and the 86-year-old Senate President pro tempore Carl Hayden.^[17][19] Senator Birch Bayh succeeded Kefauver as Chairman of the Subcommittee on Constitutional Amendments and set about advocating for a detailed amendment dealing with presidential disability.^[17]

Bayh–Celler proposal

On January 6, 1965, Senator Birch Bayh proposed S. J. Res. 1 in the Senate and Representative Emanuel Celler (Chairman of the House Judiciary Committee) proposed H. J. Res. 1 in the House of Representatives. Their proposal specified the process by which a President could be declared "unable to discharge the powers and duties of his office", thereby making the Vice President an Acting President, and how the President could regain the powers of his 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 neither provided for filling a vacancy in the office of Vice President prior to the next presidential election nor provided a process for determining presidential disability. In 1964, the American Bar Association endorsed the type of proposal which Bayh and Celler advocated.^[20] On January 28, 1965, President Johnson endorsed S. J. Res. 1 in a statement to Congress.^[9] Their proposal received bipartisan support.^[21]

On February 19, the Senate passed the amendment, but the House passed a different version of the amendment on April 13. On April 22, it was returned to the Senate with revisions.^[9] There were four areas of disagreement between the House and Senate versions:

• the Senate official who was to receive any written declaration under the amendment
• the period of time during which the Vice President and Cabinet must decide whether they disagree with the President's declaration that he is fit to resume his duties
• the time before Congress meets to resolve the issue between the President, Vice President, and the Cabinet
• the time limit for Congress to reach a decision^[9]

On July 6, after a conference committee ironed out differences between the versions,^[22] the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.^[23]

Proposal and ratification

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

The following states have not ratified the amendment:

1. Georgia
2. North Dakota^[24]
3. South Carolina

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

John Tyler, first to succeed to the office of President. His succession was initially contested and it was unknown whether he should be considered to be president or acting president.

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

Section 2: Vice Presidential vacancy

Prior to the Twenty-fifth Amendment's adoption, a Vice Presidential vacancy remained until the start of the next presidential term. The Vice Presidency has been vacant several times due to death, resignation, or succession to the Presidency. Often these vacancies lasted for several 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 discharges those powers and duties as Acting President.

Section 4: Vice Presidential–Cabinet declaration

Section 4 is the only part of the amendment that has never been invoked.^[25] It allows the Vice President, together with a "majority of either the principal officers of the executive departments or of such other body as Congress may by law provide", to declare the President "unable to discharge the powers and duties of his office" by submitting a written declaration to the President pro tempore of the Senate 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 should the President's incapacitation prevent him from discharging his duties, but he is unable or unwilling to provide the written declaration called for by Section 3. 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 believe the President is still "unable to discharge the powers and duties of his office", they may within four days of the President's declaration submit another declaration that the President is incapacitated. If not already in session, the Congress must then assemble within 48 hours. The Congress has 21 days to decide the issue. If within the 21 days two-thirds of each house of Congress vote that the President is incapacitated, the Vice President would "continue" to be Acting President. Should the Congress resolve the issue in favor of the President, or make no decision within the 21 days allotted, then the President would "resume" discharging 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 specified 21-day Congressional procedure would start again.

Proposed replacing of Cabinet

On April 14, 2017, Representative Earl Blumenauer introduced the Oversight Commission on Presidential Capacity Act.^[26] This bill would replace the Cabinet as the body that, together with the Vice President, determines whether Section 4 should be invoked. Under the bill, an eleven-member commission would conduct an examination of the President when directed to do so by a concurrent resolution of the Congress.^[27]

According to Blumenauer:

It is hard to imagine a better group to work with the vice president to examine whether the president is able to discharge the duties of the office. When there are questions about the president’s ability to fulfill his or her constitutional responsibilities, it is in the country’s best interest to have a mechanism in place that works effectively.^[27]

Invocations

(L–R): President Richard Nixon, First Lady Pat Nixon, Betty Ford and Gerald Ford, after President Nixon nominated Gerald Ford to be Vice President
(The White House, October 13, 1973)

The Twenty-fifth Amendment has been invoked six times since its ratification. The first three times were applications of Sections 1 and 2 in the context of scandals surrounding the Nixon Administration. The latter three were applications of Section 3 regarding Presidents undergoing a medical procedure requiring general anesthesia.

Succession to presidency

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.^[28] Gerald Ford is the only person ever to be Vice President, and later President, without being elected to either office.^[29]

Filling vice presidential vacancies

1973: Appointment of Gerald Ford as Vice President

On October 12, 1973, following Vice President Spiro Agnew's resignation two days earlier, President Richard Nixon nominated 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.^[30]

1974: Appointment of Nelson Rockefeller as Vice President

When Gerald Ford became President, the office of Vice President became vacant. On August 20, 1974, after considering Melvin Laird and George H. W. Bush, President Ford nominated former New York Governor Nelson Rockefeller to be the new 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 later that day in the Senate chamber.^[30]

Acting Presidents

1985: George H. W. Bush

On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a pre-cancerous lesion called a villous adenoma was discovered. When told by his physician (Dr. Edward Cattau) that he could undergo surgery immediately or in two to three weeks, Reagan elected to have it removed immediately.^[31]

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 recommended that Reagan transfer power and two letters doing so were drafted: the first letter specifically invoked Section 3 of the Twenty-fifth Amendment; the second only mentioned that Reagan was mindful of this provision. 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.^[32] Vice President George H. W. Bush was Acting President from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a second letter to resume the powers and duties of the office. It is the longest "term" as Acting President and makes George H.W. Bush the person to serve as Acting President for the longest cumulative time.

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 President Reagan's intent to transfer power to Vice President 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.

2002: Dick Cheney

On June 29, 2002, President George W. Bush underwent a colonoscopy and chose to invoke Section 3 of the amendment, temporarily transferring his powers to Vice President Dick Cheney. The medical 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 physician, Richard Tubb, conducted an overall examination. Tubb said he recommended the additional time to make sure the sedative had no aftereffects. Unlike Reagan's 1985 letter, Bush's 2002 letter specifically cited Section 3 as the authority for the transfer of power.^[32]

2007: Dick Cheney

On July 21, 2007, President Bush again invoked Section 3 in response to having to undergo a colonoscopy, temporarily transferring his powers to Vice President Cheney. President Bush invoked Section 3 at 7:16 a.m. EDT. He reclaimed his powers 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.^[32]

Considered Section 4 invocations

Twice there was a documented instance in which invoking Section 4 of the Twenty-fifth Amendment was considered, both times involving the 40th President of the United States, Ronald Reagan.

1981: Reagan assassination attempt

Following the attempted assassination of Ronald Reagan on March 30, 1981, Vice President George H. W. Bush did not assume the presidential powers and duties as Acting President. 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. Reagan was out of surgery by the time Bush arrived in Washington.^[33] In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked.^[34]

1987: Reagan's alleged incapacity

Upon becoming the 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^[35] due to Reagan's perceived laziness and ineptitude.^[36][37]

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.^[36][37]

See also

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

References

Sources

• Constitution of the United States of America
• Bayh, Birch (1968). One Heartbeat Away. 
• Gant, Scott (1999). "Presidential Inability and the Twenty-Fifth Amendment's Unexplored Removal Provisions". Michigan State Law Review: 791. 
• Kilman, Johnny & Costello, George Costello (Eds) (2000). The Constitution of the United States of America: Analysis and Interpretation'. Archived from the original on 2008-12-11. CS1 maint: Uses authors parameter (link)
• "Transcript of White House press briefing re G.W. Bush temporary transfer of power to VP Cheney". CNN. June 29, 2002. Retrieved June 4, 2006. 
• CNN Story of White House statement regarding G.W. Bush temporary transfer of power to VP Cheney July 21, 2007.
• Presidential Inability and Subjective Meaning by Adam R. F. Gustafson, Yale Law & Policy Review, Vol. 27 (2009), p. 459.
• Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment by John Feerick, Fordham Law Review, Vol. 79 (2011), p. 908.
• The Twenty-Fifth Amendment: Its Complete History and Applications, Third Edition by John Feerick (Fordham University Press, 2013).
• 25th Constitutional Amendment The Great Society Congress, Association of Centers for the Study of Congress (URL accessed April 6, 2016).
• Twenty-Fifth Amendment Archive Fordham Law Archive of Scholarship and History (URL accessed February 22, 2017).

External links

Wikimedia Commons has media related to Twenty-fifth Amendment to the United States Constitution.

• National Archives: Twenty-fifth Amendment
• CRS Annotated Constitution: Twenty-fifth Amendment
• Amendment25.com
• The Great Society Congress
• Twenty-Fifth Amendment Archive