Twenty‐fifth Amendment

 

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Amendment XXV (the Twenty-fifth Amendment) of the United States Constitution clarifies an ambiguous provision of the Constitution regarding 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.

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 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.

”

Authorship and ratification

The amendment was proposed in Congress on January 6, 1965 (Senate version, drafted by Sen. Birch Bayh) and July 6, 1965 (House version, proposed by Rep. Emanuel Celler).

Hearings were held through February 19, in which the Senate passed the amendment (then known as "Senate Joint Resolution 1") by a unanimous 72-0 vote. The House passed a modified form of the amendment on April 13 by a 368-29 margin, and after a conference committee ironed out differences between the versions, on July 6, 1965 the final version of the amendment was passed by the Senate and presented to the states for ratification.

Just six days after its submission, Wisconsin (by an 84-11 margin in the State Assembly and 28-0 in the Wisconsin Senate) and Nebraska were the first states to ratify the amendment. On February 10, 1967, Minnesota and Nevada were the 37th and 38th states to ratify, and in a ceremony in the East Room of the White House, General Services Administrator Lawson Knott certified that the amendment was part of the United States Constitution on February 23, 1967.

Section one: Presidential vacancy

As originally ratified, Article II, section 1, clause 6 of the United States Constitution stated that if the office of President became vacant, or the President became unable to discharge the powers and duties of the office, "the Same shall devolve upon the Vice President."

This language is ambiguous: in the case of vacancy, did the "office" devolve on the Vice President (i.e. he became President), or did the "powers and duties of the office" devolve on him (i.e. he would merely act as President)? While this question was answered by precedent when John Tyler succeeded to the office upon William Henry Harrison's death in 1841, there still remained doubts. Section 1 of the 25th amendment clarified the position: the Vice President becomes President if the presidency is vacated.

Section two: Vice Presidential vacancy

The Constitution did not provide for Vice Presidential vacancies until the 25th amendment was ratified — an omission that had been debated for over a century; the Vice Presidency was vacant due to death or resignation (or succession to the Presidency, per the John Tyler precedent) several times, often for years. Under the 25th amendment, whenever there is a vacancy in the office of Vice President of the United States, the President nominates a successor, who is confirmed by the majority vote of both houses of Congress.

The 25th amendment is supplemented by the Presidential Succession Act of 1947, which establishes a line of succession to the powers and duties of the Presidency. Should neither the President nor Vice President be able to serve, the line of succession details what government official shall then act as President.

Sections three and four: Presidential disability

The question of how a Presidential inability was to be resolved was answered by the Twenty-fifth Amendment. Abraham Lincoln lay unconscious for several hours after he was shot until he died; James Garfield was incapacitated for eighty days by an assassin's bullet before dying; a stroke rendered Woodrow Wilson an invalid for the last eighteen months of his term; and Dwight D. Eisenhower suffered a heart attack in 1955 and a stroke in 1957, although in both instances he was able to return to duty quickly.

Section three: Voluntary withdrawal

The Twenty-Fifth Amendment addressed the issue by providing that the President may, by transmitting to the President pro tempore of the Senate and the Speaker of the House of Representatives a written declaration to the same effect, declare himself unable to discharge the powers and duties of his office. Until the President sends another written declaration to the aforementioned officers declaring himself able to resume office, the Vice President serves as Acting President.

Section four: Involuntary withdrawal

It is also possible for the Vice President, together with a majority of the heads of the executive departments (that is to say, members of Cabinet) or of such other body as Congress by law provides, to declare the President disabled. The provisions of section four have never been invoked. An "involuntary" withdrawal may be declared for a variety of reasons. The most likely scenario, and the primary purpose of section four, is incapacitation. This results in both the inability of a President to discharge the duties of his office, and his inability to provide a written declaration to that effect. It is possible, however, for such a declaration to be made even if the President is fully able and conscious, should the majority of his officers find grounds other than medical disability, such as insanity, emotional instability, or conflict of interests, affecting national security. The President may resume his duties by a written declaration sent to the President pro tempore and the Speaker. If the Vice President and Cabinet, however, are still unsatisfied with the President's condition, they may within four days of the President's declaration submit another declaration that the President is incapacitated. Congress must assemble within 48 hours, then has 21 days to decide the issue; a two-thirds vote in each House is required to affirm the President as unfit. The amendment says upon this finding by Congress that the Vice President will "continue" to discharge the Presidential duties, implying the Vice President assumes control until Congress decides the issue. Should Congress uphold the finding of incapacity, for the remainder of his term, the elected President remains the President (and the acting President remains the Vice President) albeit stripped of his powers and duties, and he may compel Congress to review his competence at any point in order to resume his duties.

In theory, the timing provisions of this clause allow a Vice President and Cabinet to usurp a valid President for 27 days. While the amendment specifies the Vice President must be involved in the decision, it should be noted the amendment allows Congress to choose a body other than the cabinet to decide upon Presidential incapacity.

Applications of the Amendment

The 25th Amendment has been invoked six times since its ratification.

Appointment of Vice President Gerald Ford (1973)

Following Spiro Agnew's resignation two days earlier, President Richard Nixon nominated long-time Michigan congressman Gerald Ford to succeed Agnew as Vice President on October 12, 1973.[1]

The United States Senate voted 92 to 3 to confirm Ford on November 27, and on December 6 the House confirmed him 387 to 35. Ford was sworn in later that day at the United States Capitol.

Succession of President Gerald Ford (1974)

President Richard Nixon resigned on August 9, 1974. In accordance with section one, which formalized the Tyler precedent, Vice President Gerald Ford succeeded to the presidency.

Appointment of Vice President Nelson Rockefeller (1974)

By becoming President, Gerald Ford left the Vice Presidency vacant. After considering Melvin Laird and George H. W. Bush, on August 20, 1974, President Ford nominated former New York Governor Nelson Rockefeller to succeed him as Vice President.

After a long and contentious investigation, particularly to ensure that his family's business dealings would not cause conflicts of interest, Rockefeller was confirmed 90-7 by the Senate on December 10 1974. He was then confirmed 287-128 by the House on December 19, 1974, and sworn into office that same day.

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 25th 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 25th 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. Due to some confusing language and Reagan's failure to specifically mention Section 3 of the amendment (see Reagan transfer of power letters) in his letter, some constitutional scholars have claimed that Reagan did not actually transfer his power to Bush.

However, in books such as The President Has Been Shot: Confusion, Disability and the 25th Amendment, by Herbert Abrams, and Reagan's autobiography, An American Life, 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)

Further information: Acting President of the United States#Invocations of 25th Amendment

On the morning of June 29, 2002, President George W. Bush underwent a colonoscopy and chose to invoke the 25th amendment, temporarily transferring his powers to Vice President Cheney.

The 2002 procedure began at 7:09 a.m EDT and ended at 7:29 a.m. EDT Bush woke up two minutes later but did not resume his presidential office 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 of the 25th amendment in his letter transferring power.

Acting President Dick Cheney (2007)

Further information: Acting President of the United States#Invocations of 25th Amendment

On the morning of July 21, 2007, President George W. Bush underwent a colonoscopy and chose to invoke the 25th amendment, temporarily transferring his powers to Vice President Cheney. President Bush invoked Section 3 of the 25th Amendment at 7:16 a.m. EDT. He reclaimed his powers, pursuant to Section 3, at 9:21 a.m. EDT. As happened in 2002, President Bush specifically cited Section 3 of the 25th Amendment when he transferred the Presidential powers to the Vice President and when he reclaimed those powers.

Considered applications of the Amendment

On two publicly known occasions (and possibly others that the public has not been made aware of), the possibility of invoking provisions of the 25th amendment, particularly Section 4, have been considered.

1981: Reagan assassination attempt

Following the assassination attempt on President Ronald Reagan on March 30, 1981, a number of cabinet officials suggested that Vice President George H. W. Bush assume the role of Acting President under the provisions of Section 4 of the amendment. Bush, however, was opposed to the idea, in part because he didn't wish to be seen as leading a de facto coup d'état.^{[citation needed]}

Scholars of Presidential history and the 25th Amendment are nearly unanimous in their assessment that the scenario that unfolded during the Reagan assassination attempt is precisely the type of situation the amendment was intended to address, and that Bush should have invoked Section 4's provisions and assumed executive authority.^{[citation needed]}

1987: Reagan 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 25th Amendment due to Reagan's perceived laziness and ineptitude.

According to PBS's American Experience program recalling the Reagan administration: "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."^[1]

Earlier drafts of the Amendment

The first draft of Senate Joint Resolution 1, the legislation that would ultimately be ratified as the 25th amendment, was preceded by two other attempts to pass a constitutional amendment regarding Presidential succession: Senate Joint Resolution 35 and Senate Joint Resolution 139:

Senate Joint Resolution 35 (1963)

Senate Joint Resolution 35 was proposed by Senator Kenneth Keating of New York, and received the recommendation of the American Bar Association. Tennessee Senator Estes Kefauver (the Chairman of the Judiciary Committee's subcommittee on Constitutional Amendments), a long-time advocate for addressing the disability question, spearheaded the effort initially but died of a heart attack on August 10, 1963, in effect killing the amendment.

The text of the amendment read:

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.

Senate Joint Resolution 139 (1963)

Senate Joint Resolution 139 was proposed by Senators Bayh of Indiana (who had succeeded Kefauver as chair of the Constitutional Amendments subcommittee) and Long of Missouri.

Where Senate Joint Resolution 35 had been seen by some as too vague in terms relating to Presidential succession and disability, this legislation was seen as too constrictive by some, as it in essence aped the Presidential Succession Act of 1947. The text of the amendment read:

Section 1

In case of the removal of the President from office, or of his death or resignation, the Vice President shall become President for the unexpired portion of the then current term. Within a period of thirty days thereafter, the new President shall nominate a Vice President who shall take office upon confirmation by both Houses of Congress by a majority of those present and voting.

Section 2

In case of the removal of the Vice President from office, or of his death or resignation, the President, within a period of thirty days thereafter, shall nominate a Vice President who shall take office upon confirmation by both Houses of Congress by a majority vote of those present and voting.

Section 3

If the President shall declare in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4

If the President does not so declare, the Vice President, if satisfied that such inability exists, shall, upon the written approval of a majority of the heads of the executive departments in office, assume the discharge of the powers and duties of the office as Acting President.

Section 5

Whenever the President makes public announcement in writing that his inability has terminated, he shall resume the discharge of the powers and duties of his office on the seventh day after making such announcement, or at such earlier time after such announcement as he and the Vice President may determine. But if the Vice President, with the written approval of a majority of the heads of executive departments in office at the time of such announcement, transmits to the Congress his written declaration that in his opinion the President's inability has not terminated, the Congress shall thereupon consider the issue. If the Congress is not then in session, it shall assemble in special session on the call of the Vice President. If the Congress determines by concurrent resolution, adopted with the approval of two-thirds of the Members present in each House, that the inability of the President has not terminated, thereupon, notwithstanding any further announcement by the President, the Vice President shall discharge such powers and duties as Acting President until the occurrence of the earliest of the following events: (1) the Acting President proclaims that the President's inability has ended, (2) the Congress determines by concurrent resolution, adopted with the approval of a majority of the Members present in each House, that the President's inability has ended, or (3) the President's term ends.

Section 6

(a) (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President, shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Postmaster General, Secretary of Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health, Education and Welfare, and such other heads of executive departments as may be established hereafter and in order of their establishment.

(a) (2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this section.

(a) (3) To qualify under this section, an individual must have been appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, or inability of the President and Vice President, and must not be under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon him.

(b) In case of the death, resignation, or removal of both the President and Vice President, his successor shall be President until the expiration of the then current Presidential term. In case of the inability of the President and Vice President to discharge the powers and duties of the office of President, his successor, as designated in this section, shall be subject to the provisions of sections 3, 4, and 5 of this article as if he were a Vice President acting in case of disability of the President.

(c) The taking of the oath of office by an individual specified in the list of paragraph (1) of subsection (a) shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.

(d) During the period that any individual acts as President under this section, his compensation shall be at the rate then provided by law in the case of the President.

Section 7

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Joint Resolution 1 (1965)

House Joint Resolution 1 was proposed by Representative Emanuel Celler, chairman of the House Judiciary Committee, on January 4, 1965, and Senate Joint Resolution 1 was proposed by Senator Birch Bayh of Indiana on January 6, 1965. These resolutions ultimately led to what became the 25th amendment.

Original form of Joint Resolution 1 (both House and Senate versions)

Sections 1 and 2 went unchanged throughout the amendment's passage through Congress, and consequently are not repeated. Sections 3, 4 and 5 in their original form read as follows:

Section 3

If the President declares in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4

If the President does not so declare, and the Vice President with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits to the Congress his 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.

Section 5

Whenever the President transmits to the Congress his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President, with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits within two days to the Congress his written declaration that the President is unable to discharge the powers and duites of his office. Thereupon Congress will immediately decide the issue. If the Congress determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of the 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.

Proposal and ratification

Congress proposed the Twenty-fifth Amendment on July 6, 1965.^[2] The amendment was eventually ratified by every state except Georgia, North Dakota, and South Carolina. The following states ratified the amendment:

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)

Notes

1. ^ http://www.pbs.org/wgbh/amex/Presidents/40_reagan/filmmore/filmscript.html
2. ^ Mount, Steve (Jan 2007). Ratification of Constitutional Amendments. Retrieved on Feb 24, 2007.

References

• Constitution of the United States.
• Kilman, Johnny and George Costello (Eds). (2000). The Constitution of the United States of America: Analysis and Interpretation.
• 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 2002-06-29 (URL accessed 2006-06-04).
• CNN Story of White House statement regarding G.W. Bush temporary transfer of power to VP Cheney 2007-07-21.

See also

• United States Presidential line of succession
• Fiction regarding United States Presidential succession

External links

• National Archives: 25th Amendment
• CRS Annotated Constitution: 25th Amendment
• Amendment25.com

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