The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with issues related to presidential succession and disability. It clarifies that the vice president becomes president (as opposed to acting president) if the president dies, resigns, or is removed from office; and establishes procedures for filling a vacancy in the office of the vice president and for responding to presidential disabilities. The Twenty-fifth Amendment was submitted to the states on July 6, 1965, by the 89th Congress and was adopted on February 10, 1967, during the 90th Congress, the day that the requisite number (38) of individual states had ratified the amendment.
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...
This provision is ambiguous as to whether, in the enumerated circumstances, the vice president becomes the president, or merely assumes the "powers and duties" of the presidency. It also fails to define what constitutes inability, or how questions concerning inability are to be resolved.
The Twenty-fifth Amendment addresses these deficiencies.
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 2 addresses the Constitution's failure to originally provide a mechanism for filling a vacancy in the office of vice president during the term in which the vacancy occurred. Before the Twenty-fifth Amendment a vice presidential vacancy continued until a new vice president took office at the start of the next term. The vice presidency had become vacant several times due to death, resignation, or succession to the presidency, and these vacancies had often lasted several years.
Section 3: Presidential declaration
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 3 allows the president to voluntarily transfer his authority to the vice president (for example, in anticipation of a medical procedure) by declaring in writing his inability to discharge his duties. The vice president then assumes the powers and duties of the presidency as acting president; the vice president does not become president and the president remains in office, although without authority. The president regains his powers and duties when he declares in writing that he is again ready to discharge them.
Section 4: Declaration by vice president and principal officers
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[note 1] 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.
Section 4 addresses the case of an incapacitated president who is unable or unwilling to execute the voluntary declaration contemplated in Section3; it is the amendment's only section that has never been invoked. 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" in a written declaration. The transfer of authority to the vice president is immediate, and (as with Section3) the vice president becomes acting president – not president – while the president remains in office, albeit divested of all authority.
A president thus declared unable to serve may subsequently issue a declaration stating that he is able. This marks the beginning of a four-day period during which the vice president remains acting president.:38n137 If by the end of this period the vice president and a majority of the "principal officers of the executive departments" have not issued a second declaration of the president's incapacity, then the president resumes his powers and duties.
If a second declaration of incapacity is issued within the four-day period, then the vice president remains acting president while Congress considers the matter. If within 21 days
the Senate and the House determine, each by a two-thirds vote, that the president is incapacitated, then the vice president continues as acting president; otherwise the president resumes his powers and duties.[note 2]
Section 4's requirements for the vice president to remain acting president indefinitely – a declaration by the vice president together with a majority of the principal officers or other body, then (if the president makes a counter-declaration) a two-thirds vote of the House and a two-thirds vote of the Senate – contrasts with the Constitution's procedure for removal of the president from office for "high crimes and misdemeanors" – a majority of the House (Article I, Section 2, Clause 5) followed by two-thirds of the Senate (Article I, Section 3, Clause 6).
Vice presidential vacancies and succession to the presidency
1973: Appointment of Gerald Ford as vice president
When Nixon resigned on August 9, 1974, Ford, as vice president, succeeded to the presidency. Ford is the only person ever to serve as both vice president and president without being elected to either office.
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, Ford nominated former New York governor Nelson Rockefeller to be the new vice president.
On December 10, Rockefeller was confirmed 90–7 by the Senate. On December 19, he was confirmed 287–128 by the House and was sworn in to office later that day in the Senate chamber.
On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a precancerous lesion was discovered. He elected to have it removed immediately and consulted with White House counsel Fred Fielding about whether to invoke Section3, and in particular about whether doing so would set an undesirable precedent. Fielding and White House Chief of StaffDonald Regan recommended that Reagan transfer power, and two letters were drafted: one specifically invoking Section3, the other mentioning only that Reagan was mindful of its provisions. On July 13, Reagan signed the second letter before being placed under general anesthesia for a colectomy, and Vice President George H. W. Bush was acting president from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a followup letter declaring himself able to resume his duties.
A commentator notes that although Reagan disclaimed any use of the Twenty-Fifth Amendment in his letter, likely out of "fear of the reaction of the country and the world to a 'President' who admitted to being disabled, and concern ... [over] set[ting] a harmful precedent", his actions did invoke Section 3, as he followed all of its guidelines and procedures, "no constitutional provision except the Twenty-Fifth Amendment would have allowed" him to designate the vice president as acting president, and he later stated in a memoir that he invoked it.
2002: Dick Cheney
On June 29, 2002, President George W. Bush explicitly invoked Section3 in temporarily transferring his powers to Vice President Dick Cheney before undergoing a colonoscopy, which began at 7:09 a.m. Bush awoke about forty minutes later but did not resume his presidential powers until 9:24 a.m., to ensure any aftereffects had cleared.
During that time, Acting President Cheney held his regular national security and homeland security meetings with aides at the White House, but made no appearances and took no recorded actions, according to his staff.
In the view of a commentator, this confident application of Section 3 "rectified" President Reagan's "ambivalent invocation", and provided an example of a "smooth and temporary transition" under Section 3 that paved the way for future applications. Together with the 2007 invocation, it established the reasonableness of invocation for relatively minor inabilities, promoting continuity in the Executive Branch.
2007: Dick Cheney
On July 21, 2007, Bush again invoked Section 3 before another colonoscopy. Cheney was acting president from 7:16 a.m. to 9:21 a.m. During that time, Acting President Cheney remained at home, writing a letter to his grandchildren. This 2007 invocation and the 2002 invocation received relatively little attention in the press overall.
Letter from President Reagan invoking Section 3 to resume discharging powers and duties of the presidency.
The text of the letters sent by President George W. Bush to U.S. Senate President Pro TemRobert C. Byrd on June 29, 2002 invoking Section 3 before and after undergoing sedation for a colonoscopy, as reprinted in the Congressional Record, Senate section, several weeks later (letter begins in bottom right column and continues on next page).
The text of the letters sent by President George W. Bush to U.S. House Speaker Nancy Pelosi and Senate President Pro Tem Robert C. Byrd on July 21, 2007 invoking Section 3 before and after undergoing sedation for a colonoscopy, as reprinted in Public Papers of the Presidents.
A draft letter, unsigned and unsent, invoking Section3 of the Twenty-fifth Amendment, prepared for President Ronald Reagan's signature following the attempt on his life on March 30, 1981
There have been instances when a presidential administration has prepared for the possible invocation of Section 3 or4 of the Twenty-fifth Amendment. None of these instances resulted in the Twenty-fifth Amendment's being invoked or otherwise having presidential authority transferred. In many of the cases where the Twenty-fifth Amendment was considered, a fear of conveying an impression of weakness in time of crisis has stopped it from being invoked.
A draft letter, unsigned and unsent, invoking Section4 of the Twenty-fifth Amendment, prepared for the signatures of President Ronald Reagan's Cabinet members following the attempt on his life on March 30, 1981
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 had been rushed into surgery with no opportunity to invoke Section3; Bush did not invoke Section4 because he was on a plane at the time of the shooting, and Reagan was out of surgery by the time Bush landed in Washington. In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section4 should have been invoked.Physician to the PresidentDaniel Ruge, who supervised Reagan's treatment immediately after the shooting, said he had erred by not having Reagan invoke Section3 because the president needed general anesthesia and was in an intensive care unit.
Upon becoming the White House chief of staff in 1987, Howard Baker was advised by staff to prepare for a possible invocation of Section4 due to Reagan's perceived laziness and ineptitude.
According to Reagan biographer Edmund Morris, Baker's staff intended to use their first meeting with Reagan to evaluate whether he was "losing his mental grip", but Reagan "came in stimulated by the press of all these new people and performed splendidly".
Reagan was diagnosed with Alzheimer's disease in 1994, five years after leaving office. The president told Ruge – a neurosurgeon – according to the latter in 1980, that he expected doctors to test his memory, and promised to resign if it deteriorated. After Reagan's 1994 announcement, Ruge said he had never found any signs of Alzheimer's while talking to him almost every day from 1981 to 1985.
In 1841, William Henry Harrison died in office. It had previously been suggested that the vice president would become acting president upon the death of the president, but Vice President John Tyler asserted that he had succeeded to the presidency, instead of merely assuming its powers and duties; he also declined to acknowledge documents referring to him as acting president. Although Tyler felt his vice presidential oath obviated any need for the presidential oath, he was persuaded that being formally sworn in would resolve any doubts; after taking the oath he moved into the White House and assumed full presidential powers. Though Tyler was sometimes derided as "His Accidency", both houses of Congress adopted a resolution confirming that he was president. The "Tyler precedent" of succession was thus established.
Following Woodrow Wilson's stroke in 1919, no one officially assumed his powers and duties, in part because his condition was kept secret by his wife, Edith Wilson, and the White House physician, Cary T. Grayson. By the time Wilson's condition became public knowledge, only a few months remained in his term and Congressional leaders were disinclined to press the issue.
After several periods of incapacity due to 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. Eisenhower suffered a heart attack in September 1955 and intestinal problems requiring emergency surgery in July 1956. Each time, 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 the situation was under control. However, Nixon never claimed to be president or acting president.
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 the presidency, rather than, as the Twenty-fifth Amendment does, having the Constitution so provide.:345 This proposal was based upon a recommendation of the American Bar Association in 1960.:27
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.
By the 1960s, medical advances had made increasingly plausible the scenario of an injured or ill president living a long time while incapacitated. The assassination of John F. Kennedy in 1963 demonstrated to policymakers the need for a clear procedure for determining presidential disability, especially in the context of the Cold War. The new president, Lyndon B. Johnson, had once suffered a heart attack 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 HouseJohn McCormack and the 86-year-old Senate president pro temporeCarl Hayden. 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.
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.:348–350 On January 28, 1965, President Johnson endorsed S.J. Res.1 in a statement to Congress. Their proposal received bipartisan support.
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. 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 principal officers of the executive departments 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
the time limit for Congress to reach a decision.
On July 6, after a conference committee ironed out differences between the versions, the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.:354–358
Nebraska was the first state to ratify, on July 12, 1965, and ratification became complete when Nevada became the 38th state to ratify, on February 10, 1967.
Nevada (February 10, 1967, at which point ratification was complete)
Connecticut (February 14, 1967)
Montana (February 15, 1967)
South Dakota (March 6, 1967)
Ohio (March 7, 1967)
Alabama (March 14, 1967)
North Carolina (March 22, 1967)
Illinois (March 22, 1967)
Texas (April 25, 1967)
Florida (May 25, 1967)
The following states have not ratified:
When Lyndon B. Johnson underwent planned surgery in 1965, ratification remained incomplete so he was unable to temporarily transfer power to Vice President Hubert H. Humphrey. On February 23, 1967, at the White House ceremony certifying the ratification, Johnson said:
It was 180 years ago, in the closing days of the Constitutional Convention, that the Founding Fathers debated the question of Presidential disability. John Dickinson of Delaware asked this question: "What is the extent of the term 'disability' and who is to be the judge of it?" No one replied.
It is hard to believe that until last week our Constitution provided no clear answer. Now, at last, the 25th amendment clarifies the crucial clause that provides for succession to the Presidency and for filling a Vice Presidential vacancy.
^The expression "executive departments" is used in § 4 in both the singular and the
plural. The plural was what was intended. The use of the singular was inadvertent.
If Congress is in session when it receives the second declaration of incapacity, the 21 days begins at that point; otherwise they begin at the end of the 48 hours given for Congress to assemble.
The president resumes his powers and duties when either the Senate or the House holds a vote on the question which falls short of the two-thirds requirement, or the 21 days pass without both votes having been taken.:52
^ abKalt, Brian C.; Pozen, David. "The Twenty-fifth Amendment". The Interactive Constitution. Philadelphia, PA: The National Constitution Center. Retrieved July 20, 2018.
^Feerick, John D. (2014). The Twenty-Fifth Amendment: Its Complete History and Applications. Fordham University Press. pp. 112–113. ISBN978-0-8232-5201-5.
^Bayh, Birch and Constitutional Amendments Subcommittee; Committee on the Judiciary. Senate. United States., "Selected Materials on the Twenty-Fifth Amendment, Senate Document No. 93-42." (1973). Congressional Materials. 17.