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Twenty-fifth Amendment: President’s MIA

The Passage

Article II, Section 1, Clause 6 of the Constitution, known as the Presidential Succession Clause, states that the Vice President will assume the duties of the President 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.” Vice President John Tyler first invoked the clause after the death of President Willian Henry Harrison in 1843. Tyler declared that he was the new President, but Congress debated whether this assertion was correct. The Presidential Succession Clause didn’t explicitly state whether the Vice President assumes the title of President or whether they simply take on the duties and powers of the presidential position.

This clause also didn’t name a successor to fill the Vice President’s office. Furthermore, what exactly was an “inability to discharge the powers and duties”? Who decided whether a President suffered from such inability? Can a President reassume their role if they regain this ability, or are they out for the term? Following the assassination of President John F. Kennedy in 1963, Indiana Senator Birch Bayh sought to answer these questions with a new Constitutional amendment. In 1967, the Twenty-fifth Amendment was ratified to do just that.

Amendment Text

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.

Interpretation

Section 1 of the Twenty-fifth Amendment confirms the precedent set by John Tyler. If the President is removed from office, dies, or resigns, the Vice President assumes the position.

Before the Amendment’s ratification, a vacant Vice Presidential seat would remain unfilled until the next election. Section 2 changed this rule, stating that the President nominates a replacement Vice President to fill the position.

Section 3 of the Amendment states that the President must formally notify the Speaker of the House and President pro tempore of the Senate, who are respectively second and third in line for the presidency after the Vice President, if they are temporarily unable to uphold the powers and duties of the President. The Vice President then becomes Acting President until the President issues a formal notice of their return to capacity.

Finally, Section 4 establishes the procedure for naming an Acting President when the President is deemed unable to perform their Constitutional duties but refuses to leave office. First, the Vice President and a majority of the Cabinet determine the competency of the President. If the President is ruled incompetent, the Vice President immediately takes charge. The President can then declare themself able, and the Vice President and Cabinet have four days to agree or disagree. If the group agrees, the President resumes their duties. Otherwise, the Vice President keeps office, and Congress votes on the President’s ability. A two-thirds majority vote is needed to remove the President from office and replace them with the Vice President.

Major Court Cases

As of 2021, the Supreme Court has not heard a case involving a matter of the Twenty-fifth Amendment.

Controversies

The Twenty-fifth Amendment has been invoked several times with little controversy. In 1973, Vice President Spiro Agnew resigned, and President Richard Nixon appointed Gerald Ford to replace him following Section 2’s guidelines. The following year, Ford became President after Nixon’s resignation, under Section 1. Interestingly, Ford is the only President to take office without ever being elected President or Vice President.

Section 3 has been invoked on three occasions without issue. Vice President George H.W. Bush became Acting President for about eight hours in 1985 while President Ronald Reagan underwent a medical procedure requiring him to go under anesthesia. President George W. Bush invoked Section 3 in 2002 and 2007 for the same reason, with Vice President Dick Cheney assuming the presidency temporarily.

Potential invocations of Section 4 are the most controversial aspect of the Amendment. Its use was first seriously considered near the end of Ronald Reagan’s presidency. Reagan reportedly exhibited signs of dementia, calling his effectiveness as President into question. White House staffers speculated on Reagan’s mental deterioration, but nothing ever came of the buzz. Reagan was later diagnosed with Alzheimer’s disease five years after leaving office.

Section 4 was also considered twice during Donald Trump’s presidency. First, in 2017, the Justice Department reportedly discussed invoking Section 4 following Trump’s dismissal of FBI Director James Comey during an investigation into potential Russian interference in Trump’s election. Talks of invoking the Twenty-fifth Amendment did not last long on this occasion. However, in 2021, President Trump was accused of inciting the riots that resulted in an insurrection on the US Capitol building. Members of both parties strongly considered invoking Section 4. Ultimately, Trump was not removed from office, but he was impeached for a second time due to his involvement in the incident.

The biggest question surrounding the Twenty-fifth Amendment, particularly Section 4, is what exactly constitutes a President’s “inability” to maintain office. The text of the Amendment does not explicitly answer this question, perhaps explaining why potential invocations stall and fizzle out. Some critics suggest that a psychologist or the official White House physician should make this designation. Others believe that other politicians are the most qualified to judge a President’s political fitness.

Why Care?

The Twenty-fifth Amendment is important because it establishes a procedure for replacing the President and Vice President should the need arise. Presidents and Vice Presidents can fall ill or resign at a moment’s notice, so it’s essential to know who is next in line for their positions. The Twenty-fifth Amendment emphasizes that voters should pay attention to everyone they elect to office, not just the big names on the ballot, as the Vice President or the next highest-ranking official may need to succeed the President in the middle of a term.

Think Further

  1. Who do you think should be the judge of presidential “inability” – the public, other government officials, a doctor/psychologist, someone else?
  2. What conditions might constitute an “inability” to discharge the powers of the President?
  3. Why do you think it is so difficult to invoke Section 4 of the Twenty-fifth Amendment?

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  1. Smentkowski, B. P. (2021, January 7). Twenty-fifth Amendment. Encyclopedia Britannica. https://www.britannica.com/topic/Twenty-fifth-Amendment.
  2. Amendment XXV. Presidential Vacancy and Disability. (n.d.). LII / Legal Information Institute. https://www.law.cornell.edu/constitution-conan/amendment-25.
  3. Interpretation: The Twenty-fifth Amendment | The National Constitution Center. (n.d.). https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxv/interps/159.