Twenty-fifth Amendment to the United States Constitution

The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with presidential succession and disability.

It clarifies that the vice president becomes president if the president dies, resigns, or is removed from office, and establishes how a vacancy in the office of the vice president can be filled. It also provides for the temporary transfer of the president's powers and duties to the vice president, either on the initiative of the president alone or on the initiative of the vice president together with a majority of the president's cabinet. In either case, the vice president becomes acting president until the presidential powers and duties are returned to the president.

The amendment was submitted to the states on July 6, 1965, by the 89th Congress and was adopted on February 10, 1967, the day that the requisite number of states (38) had ratified it.[1]

Text and effect

Section 1: Presidential succession

Section 1 clarifies that in the enumerated situations the vice president becomes president, instead of merely assuming the powers and duties of the presidency as acting president.[2] It operates automatically, without needing to be explicitly invoked.[3]:108

Section 2: Vice presidential vacancy

Section 2 provides a mechanism for filling a vacancy in vice presidency. Before the Twenty-fifth Amendment a vice presidential vacancy continued until a new vice president took office at the start of the next presidential 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.[2]

Section 3: President's declaration of inability

Section 3 allows for the voluntary transfer of presidential authority to the vice president (for example, in anticipation of a medical procedure) by the president declaring in writing to be unable to discharge the powers and duties of the presidency. The vice president then assumes those powers and duties as acting president;[note 1] the vice president does not become president and the president remains in office, although without authority. The president regains those powers and duties upon declaring, in writing, to be again able to discharge them.[3]:112-3

Section 4: Declaration by vice president and cabinet members of president's inability

Section 4 addresses the case of a president who is unable to discharge the powers and duties of the presidency but cannot, or does not, execute the voluntary declaration contemplated by Section 3.[3]:117 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",[note 3] to issue a written declaration that the president is unable to discharge his duties. Immediately upon such a declaration being sent to Congress, the vice president becomes acting president[note 4] while (as with Section 3) the president remains in office, albeit temporarily divested of authority.[9]

John Feerick, the principal drafter of the amendment,[3]:xii,xx[4]:5[10] writes that Congress deliberately left the terms unable and inability undefined "since cases of inability could take various forms not neatly fitting into [a rigid] definition ... The debates surrounding the Twenty-fifth Amendment indicate that [those terms] are intended to cover all cases in which some condition or circumstance prevents the President from discharging his powers and duties ..." [3]:112 A survey of scholarship on the amendment found

no specific threshold – medical or otherwise – for the "inability" contemplated in Section 4. The framers specifically rejected any definition of the term, prioritizing flexibility. Those implementing Section 4 should focus on whether – in an objective sense taking all of the circumstances into account – the President is "unable to discharge the powers and duties" of the office. The amendment does not require that any particular type or amount of evidence be submitted to determine that the President is unable to perform his duties. While the framers did imagine that medical evidence would be helpful to the determination of whether the President is unable, neither medical expertise nor diagnosis is required for a determination of inability ... To be sure, foremost in [the minds of the framers] was a physical or mental impairment. But the text of Section 4 sets forth a flexible standard intentionally designed to apply to a wide variety of unforeseen emergencies.[4]:7,20

Among potential examples of such unforeseen emergencies, legal scholars have listed kidnapping of the president and "political emergencies" such as impeachment. Traits such as unpopularity, incompetence, impeachable conduct, poor judgment, or laziness might not in and of themselves constitute inability, but should such traits "rise to a level where they prevented the President from carrying out his or her constitutional duties, they still might constitute an inability, even in the absence of a formal medical diagnosis." In addition, a president who already manifested disabling traits at the time he or she was elected is not thereby immunized from a declaration of inability.[4]:21n63,22n67

The "principal officers of the executive departments" are the fifteen Cabinet members enumerated in the United States Code at 5 U.S.C. § 101:[11][12]

Acting secretaries can participate in issuing the declaration.[3]:117-8[4]:13

If the president subsequently issues a declaration claiming to be able, then a four-day period begins during which the vice president remains acting president.[3]:118-9[4]:38n137 If by the end of this period the vice president and a majority of the "principal officers" have not issued a second declaration of the president's inability, then the president resumes his powers and duties; but if they do issue a second declaration within the four days, then the vice president remains acting president while Congress considers the matter. Then if within 21 days the Senate and the House determine, each by a two-thirds vote, that the president is unable, then the vice president continues as acting president; otherwise the president resumes his powers and duties.[note 5]

Section 4's requirement of a two-thirds vote of the House and a two-thirds vote of the Senate is more strict than the Constitution's requirement for impeachment and removal of the president for "high crimes and misdemeanors" – a majority of the House followed by two-thirds of the Senate.[3]:120n[14][15][16] In addition, an impeached president retains his authority unless and until the Senate votes to remove him or her at the end of an impeachment trial; in contrast, should Congress be called upon to decide the question of the president's ability or inability under Section 4, presidential authority remains in the hands of the vice president (as acting president) unless and until the question is resolved in the president's favor.[3]:118-20

Historical background

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

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.[17] The Twenty-fifth Amendment addressed these deficiencies.[2] The ambiguities in Article II, Section 1, Clause 6 of the Constitution regarding death, resignation, removal, or disability of the president created difficulties several times:

On the death of William Henry Harrison, John Tyler (pictured) became the first vice president to succeed to the presidency.
  • 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,[18] 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. Accordingly, he took the oath and title of "President," without any qualifiers, moved into the White House and assumed full presidential powers. Though Tyler was sometimes derided as "His Accidency",[19] both houses of Congress adopted a resolution confirming that he was president. The "Tyler precedent" of succession was thus established,[20] and subsequently Millard Fillmore (1850), Andrew Johnson (1865), Chester A. Arthur (1881), Theodore Roosevelt (1901), Calvin Coolidge (1923), Harry Truman (1945), and Lyndon Johnson (1963) were all deemed to have become president on the death of incumbent presidents.[4]:ix
  • 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.[21] 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.[3]:14-16
  • Prior to 1967, the office of vice president had become vacant sixteen times due to the death or resignation of the vice president or his succession to the presidency.[22] The vacancy created when Andrew Johnson succeeded to the presidency upon Abraham Lincoln's assassination was one of several that encompassed nearly the entire four-year term. In 1868, Johnson was impeached by the House of Representatives and came one vote short of being removed from office by the Senate. Had Johnson been removed, President pro tempore Benjamin Wade would have become acting president in accordance with the Presidential Succession Act of 1792.[23]
  • 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.[24] 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 refused to use the president's office in the White House or sit in the president's chair at Cabinet meetings.[3]:22

Proposal, enactment, and ratification

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 the presidency, rather than, as the Twenty-fifth Amendment does, having the Constitution so provide.[25]:345 This proposal was based upon a recommendation of the American Bar Association in 1960.[25]:27

The text of the proposal read:[25]:350

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,[25]:30 or neglect to enact any such legislation after the adoption of this proposal.[25]:34–35 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 in August 1963.[25]:28 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.[24]

Kennedy assassination

By the 1960s, medical advances had made increasingly plausible that an injured or ill president might live a long time while incapacitated. The assassination of John F. Kennedy in 1963 underscored the need for a clear procedure for determining presidential disability,[26] particularly since the new president, Lyndon Johnson, had once suffered a heart attack[27] 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[26][28] and the 86-year-old Senate president pro tempore Carl Hayden.[26][28] 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.[26]

Bayh–Celler proposal

The Twenty-fifth Amendment in the National Archives
Page 1
Page 2

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 their 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.[25]:348–350 On January 28, 1965, President Johnson endorsed S.J. Res. 1 in a statement to Congress.[24] Their proposal received bipartisan support.[5]:6

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.[24] 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 they are fit to resume the duties of the presidency
  • the time before Congress meets to resolve the issue
  • the time limit for Congress to reach a decision.[24]

On July 6, after a conference committee ironed out differences between the versions,[29] the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.[25]:354–358

Ratification

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.[note 6]

When President Lyndon B. Johnson underwent planned surgery in 1965, he was unable to temporarily transfer power to Vice President Hubert H. Humphrey because ratification remained incomplete. 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.[32]

Invocations and considered invocations

Sections 1 and 2: Richard Nixon, Gerald Ford, Nelson Rockefeller

On October 10, 1973, Vice President Spiro Agnew resigned; two days later President Richard Nixon nominated Representative Gerald Ford to be the new vice president pursuant to Section 2. Ford was confirmed by the Senate and the House on November 27 and December 6 respectively, and sworn in December 6.[33]

On August 9, 1974 Nixon resigned and Ford became president under Section 1; Ford is the only president to have been elected neither president nor vice president.[34] The office of vice president was thus again vacant, and on August 20 Ford nominated former New York governor Nelson Rockefeller.[3]:167-169 Rockefeller was confirmed by the Senate and House on December 10 and 19 respectively, and sworn in December 19.[3]:186-187

Feerick writes that the Twenty-fifth Amendment helped pave the way for Nixon's resignation during the Watergate scandal. Nixon and Agnew were Republicans, and in the months immediately following Agnew's resignation, with the vice presidency empty, removal or resignation of Nixon would have transferred the presidential powers to House Speaker Carl Albert, a Democrat. But once Ford (a Republican) became vice president under Section 2, removal of Nixon became more palatable because it would, now, not result in a change in the party holding the presidency, and therefore "the momentum for exposing the truth about Nixon's involvement in Watergate increased." [3]:158

Section 3

Draft Section  3 letter prepared (though never signed) after Ronald Reagan was shot on March  30,1981
Reagan letter of July 13, 1985, beginning invocation of 25th Amendment
Letter sent July  13, 1985, by President Ronald Reagan to the House Speaker, invoking Section  3 before undergoing anesthesia [35]
Reagan letter of July 13, 1985, ending invocation of 25th Amendment
Letter from Reagan declaring he is able to resume the presidential powers

On December 22, 1978, President Jimmy Carter considered invoking Section 3 in advance of hemorrhoid surgery.[36] Since then, presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and Barack Obama also considered invoking Section 3 at various times without doing so.[37]

On July 12, 1985, President Ronald Reagan underwent a colonoscopy and was diagnosed with bowel cancer. He elected to have the lesion removed immediately,[38] and consulted with White House counsel Fred Fielding about whether to invoke Section 3, and in particular about whether doing so would set an undesirable precedent. Fielding and White House Chief of Staff Donald Regan recommended that Reagan transfer power, and two letters were drafted: one specifically invoking Section 3, the other mentioning only that Reagan was mindful of its provisions. On July 13, Reagan signed the second letter[39] before being placed under general anesthesia for a colectomy,[40] and Vice President George H. W. Bush was acting president from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a letter declaring himself able to resume his duties.[41]

In the Fordham Law Review, commentator John Feerick asserted 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"), he followed the process set forth in Section 3. Furthermore, Feerick noted that "no constitutional provision except the Twenty-Fifth Amendment would have allowed" him to designate the vice president as acting president. Reagan later stated in a memoir that he had, in fact, invoked the Twenty-fifth Amendment.[42]

On June 29, 2002, President George W. Bush explicitly invoked Section 3 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.[39][43] During that time, Vice President Cheney (as acting president) 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.[43]

In the view of commentator Adam Gustafson, 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.[44]

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.[39] During that time, Vice President Cheney (as acting president) remained at home.[44] This 2007 invocation and the 2002 invocation received relatively little attention in the press overall.[44]

Section 4

Section 4 has never been invoked, though on several occasions its use was considered.

Draft Section  4 letter prepared (though never signed) after Ronald Reagan was shot on March  30, 1981

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 Section 3; Bush did not invoke Section 4 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.[45] In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked.[46] Physician to the President Daniel Ruge, who supervised Reagan's treatment immediately after the shooting, said he had erred by not having Reagan invoke Section 3 because the president needed general anesthesia and was in an intensive care unit.[47]

From the 1970s onwards, Reagan's political opponents alleged that he showed signs of dementia.[48] According to Reagan biographer Edmund Morris, staffers to White House chief of staff Howard Baker intended to use their first meeting with Reagan in 1987 to evaluate whether he was "losing his mental grip". However, Reagan "came in stimulated by the press of all these new people and performed splendidly".[49][50][51]

Reagan was diagnosed with Alzheimer's disease in 1994, five years after leaving office.[52] The president told neurosurgeon Daniel Ruge, according to Ruge in 1980, that he expected doctors to test his memory, and promised to resign if it deteriorated. After the 1994 diagnosis, Ruge said he never found any sign of Alzheimer's while talking to him almost every day from 1981 to 1985.[47]

After President Donald Trump dismissed FBI director James Comey in May 2017, acting FBI director Andrew McCabe claimed that Deputy Attorney General Rod Rosenstein held high-level discussions within the Justice Department about approaching Vice President Mike Pence and the Cabinet about possibly invoking Section 4.[53] Miles Taylor, who anonymously authored "I Am Part of the Resistance Inside the Trump Administration" and A Warning, also wrote that he and other aides considered approaching Pence to invoke the Twenty-fifth Amendment.[54] A spokesperson later said that Rosenstein denied pursuing the Twenty-fifth Amendment, and Pence strongly denied considering invoking Section 4.[54][55] On March 15, 2019, Senator Lindsey Graham stated the Senate Judiciary Committee would investigate the discussions and seek related documents.[56]

After the storming of the United States Capitol on January 6, 2021, President Trump was accused of having incited the incident,[57][58][59] leading to several calls for Section 4 to be invoked. Proponents included Representatives Ted Lieu and Charlie Crist, former Defense Secretary William Cohen, and the National Association of Manufacturers (which asked Vice President Pence to "seriously consider" invoking the amendment).[60] By evening, some of Trump's Cabinet members were also reportedly considering invoking Section 4.[61] In a New York magazine article, law professor Paul Campos also supported using Section 4 "immediately" and "for the good of the nation."[62] On January 7, incoming Senate majority leader Chuck Schumer and Speaker of the House of Representatives Nancy Pelosi also called for Section 4 to be invoked.[63][64]

See also

Copyright