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.
The original Presidential Succession Clause of the Constitution (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 the Constitution 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 were 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. He insisted that he was “President,” not “Acting President.” 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 President 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 then by President Johnson and Speaker John McCormack. President Johnson and Vice President Hubert Humphrey orally agreed to a similar arrangement, though they executed no written letter of agreement.
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 all the other cabinet officers in line, now ending with the secretary of homeland security.
After President John F. Kennedy was assassinated in 1963, there was a movement to constitutionalize these practices and to provide more certainty. The Twenty-fifth Amendment reflects 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 surgery—in 1985 by President Ronald Reagan and in 2002 and 2007 by President George W. Bush. The transfer of presidential power to their vice presidents was of short duration in each case. On other occasions in the administrations of both President George H. W. Bush and William J. Clinton, when the president underwent a medical procedure, consideration among the presidential staff was given to whether he should invoke Section 3 of the Amendment, but as neither president underwent general anesthesia, the need did not arise.
The president’s discretion in determining his own inability under Section 3 is broad. The discretion of those other officials whom Section 4 empowers to declare the president disabled, however, is more constrained. Section 4 was designed to cover cases where the president was unable to make or communicate a decision as to his competency. In those situations, the vice president with a majority of the cabinet, could declare the president unable to execute his office, whereupon the vice president would become acting president. However, if the president disagrees with the vice president and a majority of the cabinet, and the vice president and the cabinet renew their assertion of his inability, then 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 under Section 4.
It was not an accident that the amendment did not define “inability.” It was intended principally to cover cases of both physical and mental inability, such as when a president undergoes surgery, is kidnapped, or becomes infirm. It does not cover political and policy differences or poor judgment, incompetence, laziness, and the like.
The amendment, recognizing the importance of the vice presidency, added a Section 2 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 again after Richard M. Nixon resigned as president. Ford became president and Nelson A. Rockefeller became vice president by the same process. President Ford’s succession to the presidency was by virtue of Section 1 of the amendment and not based on the Tyler precedent.
Since 1967, there have been many meetings and studies to consider proposals to improve the system of presidential succession including the following: Congressional hearings in 1994, 2003, and 2004; a commission on presidential disability, the Miller Commission of the University of Virginia, which in 1988 proposed guidelines for advance planning by presidents; a Working Group on Presidential Disability, hosted by The Carter Center of Emory University and Wake Forest University, which focused on the role of doctors in cases of presidential inability; and studies and recommendations by the Continuity in Government Commission and a Presidential Succession Clinic at Fordham Law School with respect to gaps and ambiguities in the system, such as where there was no vice president, or the president and vice president were disabled at the same time, or a statutory successor acting as president became disabled.
Birch Evans Bayh, One Heartbeat Away: Presidential Disability and Succession (1968)
Continuity of Gov't Comm'n, Preserving Our Institutions: The Continuity of the Presidency (Second Report 2009)
Ensuring the Stability of Presidential Succession in the Modern Era: Report of the Fordham University School of Law's Clinic on Presidential Succession, 81 Fordham L. Rev. (2012)
John D. Feerick, The Proposed Twenty-Fifth Amendment to the Constitution, 34 Fordham L. Rev. 173 (1965)
John D. Feerick, The Twenty-fifth Amendment: Its Complete History and Applications (1976 and 1994)
Joel K. Goldstein, The Modern American Vice Presidency: The Transformation of a Political Institution (1982)
Managing Crisis: Presidential Disability and the Twenty-Fifth Amendment (Robert E. Gilbert ed., 2000)
Rose McDermott, Presidential Leadership, Illness, and Decision Making (2008)
Presidential Disability: Papers, Discussions, and Recommendations on the Twenty-Fifth Amendment and Issues of Inability and Disability in Presidents to the United States (James F. Toole and Robert J. Joint eds., 2001)
Report of the Commission on Presidential Disability and the Twenty-Fifth Amendment (1988), by the fourth Miller Center Commission, at http://web1.millercenter.org/commissions/comm_1988.pdf