Constitution Provides for the Incapacity of the President

Date February 23, 1967

The ratification of the Twenty-fifth Amendment to the U.S. Constitution clarified presidential succession and defined procedures for filling a vice presidential vacancy should the president die, become incapacitated, resign, or be removed from office.

Also known as Twenty-fifth Amendment

Locale Washington, D.C.

Key Figures

• Lyndon B. Johnson (1908-1973), vice president of the United States, 1961-1963, and president, 1963-1969
• Dwight D. Eisenhower (1890-1969), president of the United States, 1953-1961
• Gerald R. Ford (1913-2006), vice president of the United States, 1973-1974, and president, 1974-1977
• John F. Kennedy (1917-1963), president of the United States, 1961-1963
• John W. McCormack (1891-1980), speaker of the House of Representatives, 1961-1971
• Richard M. Nixon (1913-1994), president of the United States, 1969-1974
• Hubert H. Humphrey (1911-1978), vice president of the United States, 1965-1969
• Spiro T. Agnew (1918-1996), vice president of the United States, 1969-1973
• Nelson A. Rockefeller (1908-1979), vice president of the United States, 1974-1977

Summary of Event

Prior to the passage of the Twenty-fifth Amendment to the U.S. Constitution, the line of succession to the office of president seemed clear: If the president died, resigned, or was removed from office, the vice president was to succeed the president in office. If, however, the president became disabled or was unable to carry out the duties and responsibilities of the office, the procedure was less clear. The question of the vice president’s role was left unanswered. Was the vice president to assume the role of acting president until such time as the president could resume that role? Could the president resume office after his or her recovery? Moreover, who was to determine “inability,” and how was the issue to be handled if the president chose to continue in office? The answers to these questions were unclear. In an effort to clarify these and other questionable issues in the aftermath of the assassination of President John F. Kennedy in 1963, the Twenty-fifth Amendment to the Constitution was drafted and then ratified by the states on February 23, 1967.

In 1957, President Dwight D. Eisenhower had instructed Attorney General Herbert Brownell, Jr., to draft a constitutional amendment to address what the government must do in case of presidential disability. No action was taken, however. In 1958, Eisenhower wrote a letter of understanding to Vice President Richard M. Nixon discussing procedures to be followed in the event of the disability of the president. Eisenhower’s letter was the definitive document on the subject until he left office in 1961. His successor, Kennedy, also wrote a letter of understanding to Vice President Lyndon B. Johnson on the same topic. After Kennedy’s assassination, Johnson, as president, wrote a similar letter to House speaker John W. McCormack, next in line of succession (the country had no vice president because Johnson had vacated the office to assume the presidency after Kennedy’s assassination). When Johnson was elected to a full term, he made a similar arrangement with Vice President Hubert H. Humphrey. Finally, in July, 1965, at Johnson’s urging, Congress passed the legislation that would become the Twenty-fifth Amendment.

The amendment fills gaps that existed prior to its enactment. Section 1 specifies that the vice president becomes president (not acting president) upon the president’s death, removal, or resignation. Section 2 states that the president shall select a vice president if that office becomes vacant, a procedure that ends the prior line of succession that included speaker of the House and president pro tempore of the Senate. The new procedure was used a few times during the 1970’s. Vice President Spiro T. Agnew resigned in 1973 and was replaced by Gerald R. Ford. When President Nixon resigned the presidency in 1974, Vice President Ford succeeded him, and Ford in turn nominated Nelson A. Rockefeller to become vice president.

Sections 3 and 4 of the amendment address “disability” and “inability” but do not define the terms; the amendment refers to physical or psychological illnesses instead. The vagueness of the terms provides flexibility and latitude for decision makers. Section 3 concerns circumstances in which the president decides to transfer presidential duties and powers to the vice president voluntarily because of an expected inability to function as president, an inability such as that caused by illness, emotional disability, or a major “distraction” (such as pending impeachment). The president is required to notify Congress only of the intention to transfer powers at a particular time. At that time, the vice president becomes acting president. The consent of Congress is not required. The president remains president at all times, with the vice president acting as a proxy only to relieve the president of certain responsibilities until such a time as the president reclaims those responsibilities. When the president informs Congress in writing that the office is being reclaimed, the transfer is automatic, and the vice president once again functions in the capacity of vice president. Section 3 is invoked during times when the president will be unconscious for an extended period of time, as is the case during many medical procedures, such as surgeries. The actual transfer of power depends on many factors and is decided on an ad hoc basis.

The much more complex section 4 authorizes involuntary transfer of power to the vice president under a variety of circumstances. Still untested, the decision to invoke section 4 falls to the vice president and the president’s cabinet. If the president is judged to be incapable of carrying out the duties and responsibilities of office, the vice president is to assume the presidential duties until such a time as the president sends a written declaration to the speaker of the House and the president pro tempore of the Senate that no inability exists. In such a case, however, within four days the vice president and other legislators may allege that the president is unable to carry out the duties of office. Congress, which ultimately decides the issue, must assemble within forty-eight hours if not already in session. Within twenty-one days, if Congress determines by a two-thirds vote of both houses that the president is unable to carry out the duties of office, the vice president must continue to function as acting president. If Congress does not make such a determination, the president can resume office.

Significance

With the passage of the Twenty-fifth Amendment, one of the longest of the Constitution, explicit powers were conferred on the president’s cabinet as well as others in government. The amendment also placed specific time limits on congressional action, empowered persons other than the president to convene a special session of Congress, and assigned the House of Representatives a role in the appointment process. The amendment also added to the vice president’s constitutional duties and established a procedure (in addition to impeachment) under which a president can be prevented from discharging the powers and duties of office. It also outlined a method for filling a vice presidential vacancy.

Bibliography

Feerick, John D. The Twenty-Fifth Amendment: Its Complete History and Applications. New York: Fordham University Press, 1992. A detailed account of the background to and need for the Twenty-fifth Amendment, its history, and its use.

Gilbert, Robert E., ed. Managing Crisis: Presidential Disability and the Twenty-Fifth Amendment. New York: Fordham University Press, 2000. The proceedings of a symposium commemorating the twenty-fifth anniversary of the amendment, and consisting of papers presented by legislators, professors, physicians, and journalists discussing the amendment’s importance and usefulness and its contributions to the health of the nation.

Kincade, Vance R., Jr. Heirs Apparent: Solving the Vice Presidential Dilemma. Westport, Conn.: Praeger, 2000. A work specific to the role of the vice president on the question of succession. Part of the Praeger Presidential Studies series.

Thompson, Kenneth W., ed. Papers on Presidential Disability and the Twenty-Fifth Amendment by Six Medical, Legal and Political Authorities. Lanham, Md.: University Press of America, 1988. A collection of medical, legal, and political papers in interview format dealing with presidential disability and the Twenty-fifth Amendment. Compiled by the Miller Center of Public Affairs at the University of Virginia.

Toole, James F., and Robert J. Joynt, eds. Presidential Disability: Papers, Discussions, and Recommendations on the Twenty-Fifth Amendment and Issues of Inability and Disability Among Presidents of the United States. Rochester, N.Y.: University of Rochester Press, 2001. A comprehensive 562-page resource on the issue of presidential disability and inability and lines of succession. Includes a bibliography and index.