Twenty-fifth Amendment to the United States Constitution


'''Amendment XXV''' (the Twenty-fifth Amendment) of the United States Constitution clarifies an ambiguous provision of the Constitution regarding succession to the Presidency, and established procedures both for filling a vacancy in the office of the Vice President as well as responding to Presidential disabilities.

Authorship and Ratification

The amendment was proposed in Congress on January 4 (House version, proposed by Rep. Emanuel Celler) and January 6, 1965 (Senate version, drafted by Sen. Birch Bayh). Hearings were held through February 19, when 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 House and 28-0 in the state 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.

Text of the Amendment

Section 1

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

Section 2

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

Section 3

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

Section 4

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Vacancies in offices of President, Vice President

As originally ratified, the United States Constitution stated that in the event the office of President became vacant, "the Powers and Duties of the office shall devolve upon the Vice President." This language was somewhat ambiguous in the eyes of some: was the Vice President merely acting as President, or did he actually succeed to the office? While this question was answered by precedent when John Tyler succeeded to the office upon William Henry Harrisons death in 1841, there still remained doubts in the minds of some. Section 1 of the 25th amendment clarified the position once and for all: the Vice President becomes President if the presidency is vacated. Since ratification of the amendment there has been one presidential vacancy, when Gerald Ford succeeded Richard Nixon upon Nixons resignation on August 9, 1974. The Constitution failed to provide for Vice Presidential vacancies until the 25th amendment was ratified - a glaring omission that had been debated for over a century, as from 1789 to 1967 the office of Vice President was vacant due to death or resignation several times, often for years at a time. 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. Vacancies in the offices of both the President and the Vice President are filled according to the presidential line of succession.

Inability of the President to serve

The question of how a Presidential inability was to be ascertained was resolved by the Twenty-fifth Amendment. James Garfield was incapacitated for eighty days before dying from an assassin's bullet; a stroke rendered Woodrow Wilson an invalid for the last eighteen months of his term. 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. 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 provision has never been invoked. 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 immediately decide the issue; a two-thirds vote in each House is required to permit the Vice President to assume the Acting Presidency.

Invocations of Amendment

The 25th Amendment has been invoked on four occasions in American history:

Nomination of Vice President

On two occasions, Presidents have invoked Section 2 of the amendment to fill a vacancy in the office of Vice President:

Vice President as Acting President

On two occasions, the Vice President of the United States has discharged the powers and duties of the office of President:

July 13, 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 or not 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.

June 29, 2002

On the morning of June 29, 2002, President George W. Bush chose to invoke the 25th amendment, temporarily transferring his powers to Vice President Dick Cheney while Bush underwent a colonoscopy. Aware of the confusion caused by Reagan's 1985 letter, Bush made a point of specifically citing Section 3 of the 25th amendment in his letter transferring power.

Other Versions of 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. Rather than to resolve the questions of presidential succession and disability however, the proposed amendment's text seemed only to solidify confusion on those topics. 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 to 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) Durign 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 lead 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.

References

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