Twenty-fifth Amendment to the United States Constitution

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The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with issues related to presidential succession and disability. It clarifies that the Vice President becomes President (as opposed to Acting President) if the president dies, resigns, or is removed from office; and establishes procedures for filling a vacancy in the office of the vice president and for responding to presidential disabilities. [1] The Twenty-fifth Amendment was submitted to the states on July 6, 1965, by the 89th Congress and was adopted on February 10, 1967. [2]

United States Constitution Supreme law of the United States of America

The United States Constitution is the supreme law of the United States. The Constitution, originally comprising seven articles, delineates the national frame of government. Its first three articles embody the doctrine of the separation of powers, whereby the federal government is divided into three branches: the legislative, consisting of the bicameral Congress ; the executive, consisting of the President ; and the judicial, consisting of the Supreme Court and other federal courts. Articles Four, Five and Six embody concepts of federalism, describing the rights and responsibilities of state governments, the states in relationship to the federal government, and the shared process of constitutional amendment. Article Seven establishes the procedure subsequently used by the thirteen States to ratify it. It is regarded as the oldest written and codified national constitution in force.

President of the United States Head of state and of government of the United States

The President of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces.

Vice President of the United States Second highest executive office in United States

The Vice President of the United States is the second-highest officer in the executive branch of the U.S. federal government, after the President of the United States, and ranks first in the presidential line of succession. The vice president is also an officer in the legislative branch, as President of the Senate. In this capacity, the vice president presides over Senate deliberations, but may not vote except to cast a tie-breaking vote. The vice president also presides over joint sessions of Congress.

Contents

Text and effect

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. [3] The Twenty-fifth Amendment addresses these deficiencies.

Section 1: Presidential 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.

Section 2: Vice presidential vacancy

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 addresses the Constitution's original failure to provide a mechanism for filling a vacancy in the office of vice president. 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: Presidential declaration

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 the president to voluntarily transfer his authority to the vice president (for example, in anticipation of a medical procedure) by declaring in writing his inability to discharge his duties. The vice president then assumes the powers and duties of the presidency as acting president; the vice president does not become president and the president remains in office, although without authority. The president regains his powers and duties when he declares in writing that he is again ready to discharge them. [4]

Section 4: Declaration by vice president and principal officers

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. [5]

Section 4 addresses the case of an incapacitated president who is unable or unwilling to execute the voluntary declaration contemplated in Section 3; it is the amendment's only section that has never been invoked. 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 declare the president "unable to discharge the powers and duties of his office" in a written declaration. The transfer of authority to the vice president is immediate, and (as with Section 3) the vice president becomes acting president not president while the president remains in office, albeit divested of all authority. [6]

The "principal officers of the executive departments" are the fifteen Cabinet members enumerated in the United States Code at 5 U.S.C 101: [7] [8] [9]

Cabinet of the United States advisory body to the President of the United States

The Cabinet of the United States is part of the executive branch of the federal government of the United States. The Cabinet's role, inferred from the language of the Opinion Clause of the Constitution is to serve as an advisory body to the President of the United States. Additionally, the Twenty-fifth Amendment authorizes the Vice President, together with a majority of certain members of the Cabinet, to declare the president "unable to discharge the powers and duties of his office". Among the senior officers of the Cabinet are the Vice President and the heads of the federal executive departments, all of whom—if eligible—are in the line of succession. Members of the Cabinet serve at the pleasure of the President, who can dismiss them at will for no cause. All federal public officials, including Cabinet members, are also subject to impeachment by the House of Representatives and trial in the Senate for "treason, bribery, and other high crimes and misdemeanors".

United States Code official compilation and codification of the United States federal laws

The Code of Laws of the United States of America is the official compilation and codification of the general and permanent federal statutes of the United States. It contains 53 titles. The main edition is published every six years by the Office of the Law Revision Counsel of the House of Representatives, and cumulative supplements are published annually. The official version of those laws not codified in the United States Code can be found in United States Statutes at Large.

A president declared unable to serve may issue a counter-declaration stating that he is indeed able. This marks the beginning of a four-day period during which the vice president remains acting president. [10] [11] If by the end of this period the vice president and a majority of the "principal officers of the executive departments" have not issued a second declaration of the president's incapacity, then the president resumes his powers and duties.

If a second declaration of incapacity is issued within the four-day period, then the vice president remains acting president while Congress considers the matter. If within 21 days the Senate and the House determine, each by a two-thirds vote, that the president is incapacitated, then the vice president continues as acting president. If either the Senate or the House holds a vote on the question which falls short of the two-thirds requirement, or the 21 days pass without both votes having taken place, then the president resumes his powers and duties. [11] [12]

Section 4's requirements for the vice president to remain acting president indefinitely a declaration by the vice president together with a majority of the principal officers or other body, then a two-thirds vote in the House and a two-thirds vote in the Senate contrasts with the Constitution's procedure for removal of the president from office for "high crimes and misdemeanors"  a majority of the House (Article I, Section 2, Clause 5) followed by two-thirds of the Senate (Article I, Section 3, Clause 6). [13] [14]

Invocations

Vice presidential vacancies and succession to the presidency

1973: Appointment of Gerald Ford as vice president

President Richard Nixon, First Lady Pat Nixon, Betty Ford and Gerald Ford at The White House, October 13, 1973, after President Nixon nominated Gerald Ford to replace Spiro Agnew as vice president Mr. and Mrs. Ford and Nixon 13 Oct 1973.jpg
President Richard Nixon, First Lady Pat Nixon, Betty Ford and Gerald Ford at The White House, October 13, 1973, after President Nixon nominated Gerald Ford to replace Spiro Agnew as vice president

On October 12, 1973, following Vice President Spiro Agnew's resignation two days earlier, President Richard Nixon nominated Representative Gerald Ford of Michigan to succeed Agnew as vice president.

The Senate voted 92–3 to confirm Ford on November 27 and, on December 6, the House of Representatives did the same by a vote of 387–35. Ford was sworn in later that day before a joint session of the United States Congress. [15]

1974: Gerald Ford succeeds Richard Nixon as president

Nixon's resignation letter, August 9, 1974 Letter of Resignation of Richard M. Nixon, 1974.jpg
Nixon's resignation letter, August 9, 1974

When President Richard Nixon resigned on August 9, 1974, Vice President Gerald Ford succeeded to the presidency. [16] Ford is the only person ever to serve as both vice president and president without being elected to either office. [17]

1974: Appointment of Nelson Rockefeller as vice president

When Gerald Ford became President, the office of vice president became vacant. On August 20, 1974, after considering Melvin Laird and George H. W. Bush, Ford nominated former New York Governor Nelson Rockefeller to be the new vice president.

On December 10, Rockefeller was confirmed 90–7 by the Senate. On December 19, he was confirmed 287–128 by the House and was sworn in to office later that day in the Senate chamber. [15]

Acting Presidents

1985: George H. W. Bush

On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a precancerous lesion was discovered. He elected to have it removed immediately [18] 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 second letter, [19] and Vice President George H. W. Bush was Acting President from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a followup letter declaring himself able to resume his duties.

2002: 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 a.m. Bush awoke about forty minutes later but did not resume his presidential powers until 9:24 a.m.; his physician, Richard Tubb, recommended he wait to ensure the sedative had no aftereffects. [19]

2007: Dick Cheney

On July 21, 2007, Bush again invoked Section 3 before another colonoscopy. Cheney was acting president from 7:16 a.m. to 9:21 a.m. [19]

Considered invocations

There have been instances when a presidential administration has prepared for the possible invocation of Section 3 or 4 of the Twenty-fifth Amendment. None of these instances resulted in the Twenty-fifth Amendment's being invoked or otherwise having presidential authority transferred.

Section 3

On December 22, 1978, President Jimmy Carter considered invoking Section 3 in advance of hemorrhoid surgery. [20] Since then, Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and Barack Obama also considered invoking Section 3 at various times without doing so. [21]

Section 4

1981: Reagan assassination attempt

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. [22] In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked. [23]

1987: Reagan's alleged incapacity

Upon becoming the White House Chief of Staff in 1987, Howard Baker was advised by staff to prepare for a possible invocation of Section 4 [24] due to Reagan's perceived laziness and ineptitude. [25] [26] According to Reagan biographer Edmund Morris, Baker's staff intended to use their first meeting with Reagan to evaluate whether he was "losing his mental grip," but Reagan "came in stimulated by the press of all these new people and performed splendidly". [25] [26] [27] Reagan was diagnosed with Alzheimer's disease in 1994, five years after leaving office. [28]

2017: Donald Trump fires FBI director James Comey

After President Donald Trump fired FBI Director James Comey in May 2017, Acting FBI Director Andrew McCabe held high-level discussions within the Justice Department about approaching Vice President Michael Pence and the Cabinet about a possible invocation of Section 4. It is unclear whether any Cabinet members were in fact approached. [29]

Historical background

The ambiguities in Article II, Section 1, Clause 6 of the Constitution regarding death, removal, or disability of the president created difficulties several times:

On the death of William Henry Harrison, John Tyler became the first vice president to succeed to the presidency. John Tyler.png
On the death of William Henry Harrison, John Tyler became the first vice president to succeed to the presidency.

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. [36] :345 This proposal was based upon a recommendation of the American Bar Association in 1960. [36] :27

The text of the proposal read: [36] :350

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 [36] :30 or neglect to enact any such legislation after the adoption of this proposal. [36] :34–35 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. [36] :28 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. [35]

Kennedy assassination

By the 1960s, medical advances had made increasingly plausible the scenario of an injured or ill president living a long time while incapacitated. The assassination of John F. Kennedy in 1963 demonstrated to policymakers of the need for a clear procedure for determining presidential disability, especially in the context of the Cold War. [37] The new president, Lyndon B. Johnson, had once suffered a heart attack [38] 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 [37] [39] and the 86-year-old Senate President pro tempore Carl Hayden. [37] [39] 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. [37]

Bayh–Celler proposal

The Twenty-fifth Amendment in the National Archives
25th Amendment Pg1of2 AC.jpg
25th Amendment Pg2of2 AC.jpg

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 his 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. [36] :348–350 On January 28, 1965, President Johnson endorsed S.J. Res. 1 in a statement to Congress. [35] Their proposal received bipartisan support. [40]

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. [35] 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 he is fit to resume his duties
  • the time before Congress meets to resolve the issue
  • the time limit for Congress to reach a decision. [35]

On July 6, after a conference committee ironed out differences between the versions, [41] the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification. [36] :354–358

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. [lower-alpha 1] On February 23, 1967, at a White House ceremony certifying the ratification, President 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. [44]

See also

Notes

  1. The states ratified as follows: [42]
    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, at which point ratification was complete). [43]
    39. Connecticut (February 14, 1967)
    40. Montana (February 15, 1967)
    41. South Dakota (March 6, 1967)
    42. Ohio (March 7, 1967)
    43. Alabama (March 14, 1967)
    44. North Carolina (March 22, 1967)
    45. Illinois (March 22, 1967)
    46. Texas (April 25, 1967)
    47. Florida (May 25, 1967)
    As of 2018, the following states have not ratified:
    1. Georgia
    2. North Dakota
    3. South Carolina

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