Twenty-fifth Amendment to the United States Constitution

"Twenty-fifth Amendment" redirects here. For other uses, see Twenty-fifth Amendment (disambiguation).

The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution addresses issues related to presidential succession and disability.

It clarifies that the vice president becomes president if the president dies, resigns, or is removed from office through impeachment. It also establishes the procedure for filling a vacancy in the office of the vice president. Additionally, the amendment 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 assumes the role of acting president until the president's powers and duties are restored.

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

Text and effect

Section 1: Presidential succession

Further information: United States presidential line of succession

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 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. It operates automatically, without needing to be explicitly invoked.

Section 2: Vice presidential vacancy

Further information: Vice President of the United States § Vacancies

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 provides a mechanism for filling a vacancy in the 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.

Section 3: President's declaration of inability

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 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; 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.

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

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 [sic] 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 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. 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 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 while (as with Section 3) the president remains in office, albeit temporarily divested of authority.

John Feerick, the principal draftsman of the amendment, 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 ..."  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.

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.

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

• Secretary of State
• Secretary of the Treasury
• Secretary of Defense
• Attorney General
• Secretary of the Interior
• Secretary of Agriculture
• Secretary of Commerce
• Secretary of Labor
• Secretary of Health and Human Services
• Secretary of Housing and Urban Development
• Secretary of Transportation
• Secretary of Energy
• Secretary of Education
• Secretary of Veterans Affairs
• Secretary of Homeland Security

Acting secretaries can participate in issuing the declaration.

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. 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.

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. 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.

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. The Twenty-fifth Amendment addressed these deficiencies. 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, 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", both houses of Congress adopted a resolution confirming that he was president. The "Tyler precedent" of succession was thus established, and subsequently Millard Fillmore (1850), Andrew Johnson (1865), Chester A. Arthur (1881), Theodore Roosevelt (1901), Calvin Coolidge (1923), Harry Truman (1945), and Lyndon B. Johnson (1963) were all deemed to have become president on the death of incumbent presidents.
• In 1893, Grover Cleveland secretly had cancer surgery, after which he was incapacitated for a time and kept from public view.
• 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.
• Prior to 1967, the office of vice president had become vacant sixteen times when the vice president died, resigned, or succeeded to the presidency. 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 in his impeachment trial. Had Johnson been removed, President pro tempore Benjamin Wade would have become acting president in accordance with the Presidential Succession Act of 1792.
• 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 refused to use the president's office in the White House or sit in the president's chair at Cabinet meetings.

The 1951 novel The Caine Mutiny and its 1954 film version influenced the drafters of the amendment. John D. Feerick told The Washington Post in 2018 that the film was a "live depiction" of the type of crisis that could arise "if a president ever faced questions about physical or mental inabilities but disagreed completely with the judgment", which was not dealt with in the Constitution. Lawmakers and lawyers drafting the amendment wanted no such "Article 184 situation" as depicted in the film, in which the Vice President of the U.S. or others could topple the President by merely saying that the President was "disabled".

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. This proposal was based upon a recommendation of the American Bar Association in 1960.

The text of the proposal 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.

Senators raised concerns that the Congress could either abuse such authority, or neglect to enact any such legislation after the adoption of this proposal. 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. 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.

Kennedy assassination

By the 1960s, medical advances had made it 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, particularly since 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 House John McCormack and the 86-year-old Senate President Pro Tempore Carl 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.

Bayh–Celler proposal

The Twenty-fifth Amendment in the National Archives

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. 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 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.

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.

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.

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.

Invocations and considered invocations

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

Further information: 1973 United States vice presidential confirmation and 1974 United States vice presidential confirmation

On October 10, 1973, Vice President Spiro Agnew resigned; two days later President Richard Nixon nominated Representative Gerald Ford to replace Agnew as 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.

On August 9, 1974 Nixon resigned and Ford became president under Section 1; Ford is the only president to have never been elected to either the presidency or the vice presidency. The office of vice president was thus again vacant, and on August 20 President Ford nominated former New York governor Nelson Rockefeller. Rockefeller was confirmed by the Senate and the House on December 10 and 19 respectively, and sworn in December 19.

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." 

Section 3

Further information: Acting president of the United States

On December 22, 1978, President Jimmy Carter considered invoking Section 3 in advance of hemorrhoid surgery. Since then, presidents Ronald Reagan, George H. W. Bush, Bill Clinton, Barack Obama, and Donald Trump also contemplated invoking Section 3 at various times without doing so. Trump, according to Stephanie Grisham, underwent a colonoscopy without anesthesia in November 2019, likely to avoid having to invoke Section 3.

1985: George H. W. Bush

On July 12, 1985, President Ronald Reagan underwent a colonoscopy and was diagnosed with bowel cancer. He elected to have the lesion removed immediately, 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 letter invoking Section 3 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 pm, when Reagan transmitted a letter declaring himself able to resume his duties.

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.

2002 and 2007: Dick Cheney

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 am. Bush awoke about forty minutes later, but did not resume his presidential powers until 9:24 a.m. to ensure any aftereffects had cleared. According to his staff, 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 while being acting president.

On July 21, 2007, Bush again invoked Section 3 before another colonoscopy. Cheney was acting president from 7:16 a.m. until 9:21 am. During that time, Vice President Cheney remained at home. This 2007 invocation and the 2002 invocation received relatively little attention in the press overall.

In the view of commentator Adam Gustafson, George W. Bush's unambiguous 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. The two invocations established the reasonableness of invocation for relatively minor inabilities, promoting continuity in the Executive Branch.

2021: Kamala Harris

On November 19, 2021, President Joe Biden temporarily transferred his powers and duties to Vice President Kamala Harris before undergoing a colonoscopy, making her acting president from 10:10 a.m. until 11:35 am.

Section 4

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

1981: Reagan assassination attempt

See also: Attempted assassination of Ronald Reagan

Draft Section 3 letter prepared (though never signed) after Ronald Reagan was shot on March 30, 1981

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. In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked. 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.

1987: Reagan's possible incapacity

From the end of the 1980s onwards, Reagan's political opponents alleged that he showed signs of dementia. 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".

Reagan was diagnosed with Alzheimer's disease in 1994, five years after leaving office. 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.

2017: Trump fires James Comey

See also: Dismissal of James Comey

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. 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. A spokesperson later said that Rosenstein denied pursuing the Twenty-fifth Amendment, and Pence strongly denied considering invoking Section 4.

2021: Trump and the Capitol attack

See also: Second impeachment of Donald Trump

After the January 6 United States Capitol attack, President Trump was accused of having incited the incident, and by evening some of Trump's Cabinet members were reportedly considering invoking Section 4.

See also

• Presidential Succession Act
• United States presidential line of succession

References

Sources

• Constitution of the United States of America
• Bayh, Birch (1968). One Heartbeat Away. ISBN 978-0-672-51160-8.
• Gant, Scott (1999). "Presidential Inability and the Twenty-Fifth Amendment's Unexplored Removal Provisions". Michigan State Law Review: 791.
• Kilman, Johnny; Costello, George (2000). The Constitution of the United States of America: Analysis and Interpretation. Archived from the original on December 11, 2008.
• "Transcript of White House press briefing re G.W. Bush temporary transfer of power to VP Cheney". CNN. June 29, 2002. Archived from the original on October 6, 2013. 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 Archived August 20, 2015, at the Wayback Machine by John Feerick, Fordham Law Review, Vol. 79 (2011), p. 908.
• The Twenty-Fifth Amendment: Its Complete History and Applications, Third Edition Archived January 14, 2021, at the Wayback Machine by John Feerick (Fordham University Press, 2013).
• 25th Constitutional Amendment Archived April 20, 2016, at the Wayback Machine 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

• CRS Annotated Constitution: Twenty-fifth Amendment
• The Great Society Congress
• Twenty-Fifth Amendment Archive
• Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress – Congressional Research Service