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.Amendment XXV
The original Presidential Succession Clause of the Constitution (see Article II, Section 1, Clause 6) appeared to be relatively simple in providing for succession to the presidency. There were, however, troubling ambiguities. What was the meaning of "inability" of a President "to discharge the Powers and Duties of said Office"? Who determined the existence of an "inability"? Did a Vice President become President for the rest of the presidential term in the case of an inability or in the event of death, resignation, or removal; or was he merely "acting as President"? It was clear that there was no procedure for filling a vacancy in the office of Vice President, although it authorized Congress to legislate a line of succession to cover situations involving the death, resignation, removal, or inability of both the President and Vice President.
Until the Twenty-fifth Amendment was adopted, the nation confronted a number of deaths in office of Presidents and Vice Presidents as well as periods when Presidents have been disabled. When President William Henry Harrison died in 1841, Vice President John Tyler, asserting that he was fully the President, ascended to the presidency for the rest of the term, claiming that was the proper interpretation of the clause. The precedent he established by assumption of the presidency was followed by other Vice Presidents when Presidents died in office. These Presidents were Zachary Taylor, Abraham Lincoln, James A. Garfield, William McKinley, Warren G. Harding, Franklin D. Roosevelt, and John F. Kennedy. The Vice Presidents who succeeded to the office were Tyler, Millard Fillmore, Andrew Johnson, Chester A. Arthur, Theodore Roosevelt, Calvin Coolidge, Harry S. Truman, and Lyndon B. Johnson, respectively.
Although the Tyler precedent was helpful in providing for continuity and stability, it caused future Vice Presidents to hesitate in asserting any role in a case of presidential inability as opposed to the death of the President. There was the question of whether the Vice President succeeded to the presidency for the rest of the term, even in a case of temporary inability, as well as the problem of the Vice President's being seen as a usurper because of the constitutional silence about his role in determining whether there was an inability. This hesitancy occurred during the eighty days when President Garfield lay dying after being shot by an assassin in 1881; in the period after President Woodrow Wilson suffered a stroke in 1919; and when Dwight D. Eisenhower suffered a heart attack, an attack of ileitis, and then a stroke. To cope with any future inability, President Eisenhower and Vice President Richard M. Nixon developed an informal protocol. Although it did not have the force of law, it gave assurance that a case of inability would be handled with due regard for stability. It provided for the President to declare his own inability and, if unable to do so, enabled the Vice President, with appropriate consultation, to make the decision. In either event, the Vice President served as Acting President until the President recovered his powers and duties upon his own declaration of recovery. This protocol was followed in turn by President Kennedy and Vice President Johnson, and by President Johnson and Vice President Hubert H. Humphrey. It was a useful protocol, but many in Congress wanted a more formal long-term solution.
Compounding the problem of presidential inability was the problem of vice presidential vacancy. Such a vacancy occurred whenever a President died in office, on the seven occasions when Vice Presidents died in office, and when Vice President John C. Calhoun resigned in 1832. In the absence of a mechanism for filling a vacancy, a statutory line of succession provided the necessary backup. This line changed twice in the country's history. The original line, reflected in a law of 1792, placed the President Pro Tempore of the Senate next in line after the Vice President. In 1886 the Secretary of State was made first in line, followed by other Members of the Cabinet. Then, in 1947, the Speaker of the House of Representatives and President Pro Tempore of the Senate, respectively, were placed ahead of the Secretary of State and the other Cabinet officers.
When President John F. Kennedy was assassinated in 1963, a movement developed to change the Constitution to constitutionalize these practices and to provide more certainty. The Twenty-fifth Amendment captures the history of succession in its provisions providing for the Vice President to become President in the event of the death, resignation, or removal of the President and to serve as Acting President for the duration of any inability. It allows a President to declare his own inability and resume his powers and duties when it has ended. This provision has been used when Presidents underwent surgeryâ€”in 1985 by President Ronald Reagan and in 2002 by President George W. Bush. For situations where the President is unable to declare his own inability, the amendment authorizes the Vice President, acting with a majority of the Cabinet, to do so and then act as President. If the President disagrees, Congress resolves the issue. The amendment also gives Congress the power to replace the Cabinet and substitute another body to function with the Vice President. It was not an accident that the amendment did not define "inability." The term was left vague in order to provide maximum flexibility to the constitutional decision makers, at a time of crisis, to do what they thought was in the best interests of the country. It was intended to cover cases of both physical and mental inability, such as when a President undergoes surgery, is kidnapped, or becomes infirm.
The amendment, recognizing the importance of the vice presidency, added a procedure for filling a vacancy in that office, namely, nomination by the President and confirmation by both Houses of Congress. This procedure was used when Vice President Spiro T. Agnew resigned and was replaced by Gerald R. Ford, and when Richard M. Nixon resigned as President. Vice President Ford became President and Nelson A. Rockefeller became Vice President by the same process.
- John Feerick
- Norris Professor of Law
- Fordham University School of Law