President Donald J. Trump’s COVID-19 diagnosis has sparked a flood of news stories about the 25th Amendment and its possible role if the President were unable to perform his constitutional duties.
To be sure, that scenario may never befall the president, his Cabinet, the vice president and Congress, the four main actors in Section 3 and 4 of the 25th Amendment. But the 25th Amendment is a topic that the National Constitution Center has discussed in broader debates for the past five years. Here is a recap of that coverage, along with links to related content.
Overview
The 25th Amendment is a critical part of the Constitution. It covers the procedure that governs questions of presidential (and vice-presidential) succession and disability. It was passed by Congress in July 1965 after considerable public debate and consideration in the House and Senate. It was finally ratified by the states in February 1967.
The Constitution as first written and ratified did not deal clearly with who succeeds the president when the office becomes vacant, or who acts as president when the chief executive is unable to perform the job for various reasons.
The original Article II, Section 1, of the Constitution addressed these matters in a general sense, reading, “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, and 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 act as President, and such Officer shall act accordingly until the Disability be removed, or a President shall be elected.”
However, this provision was not clear as to whether the vice president was to temporarily fill the role, or whether the vice president actually became the president. Until the 25th Amendment was ratified, presidents and vice presidents operated under the unofficial “Tyler precedent,” set by President John Tyler who assumed the role of president after the death of William Henry Harrison in April 1841. Tyler took the Oath of Office despite questioning from others such as John Quincy Adams who doubted that the vice president became the actual president. It was not until the assassination of President John F. Kennedy that Congress realized the need for constitutional clarity in presidential succession.
The Sections
Sections 1 and 2 of the 25th Amendment gave detail and clarity to the first part of that paragraph from Article II, Section 1. It codified the Tyler precedent and made clear the vice president becomes president “in case of the removal of the President from office or of his death or resignation.” It also added important features that allowed the president and Congress to nominate and approved a new vice president when that office became vacant during a presidential term, and to establish a line of succession if the president and vice president aren’t in office and those offices are vacant.
Sections 3 and 4 deal with scenarios where the president may suffer an “inability” or a “disability.” Starting with George Washington, who had a serious health scare as president, there have been numerous situations where the chief executive may have been “unable to discharge the powers and duties of his office.” For example, Woodrow Wilson and Grover Cleveland had serious health problems while in office before the 25th Amendment went into effect. James Garfield was incapacitated for months after he was shot by an assassin and later died in office. Franklin Pierce, Franklin D. Roosevelt, and Dwight D. Eisenhower also dealt with health issues.
In such cases, the 25th Amendment’s Section 3 allows the president to notify Congress that he has designated the vice president to act as president until the president is able to resume work. This has happened briefly in three instances in modern times when Ronald Reagan and George W. Bush notified Congress before they went under general anesthesia for medical procedures.
Section 4 is the most controversial part of the 25th Amendment: It allows the vice president and either the Cabinet or a body approved “by law” formed by Congress, to jointly agree that “the President is unable to discharge the powers and duties of his office.” In theory, this clause was designed to deal with a situation where an incapacitated president couldn’t tell Congress that the vice president needed to act as president. Senator Birch Bayh, who played a critical role in championing the 25th Amendment, explained Section 4 was designed to deal with “an impairment of the President’s faculties, meaning that he is unable either to make or communicate his decisions as to his own competency to execute the powers and duties of his office.”
Section 4 also allows the president to protest such a decision, and for two-thirds of Congress to decide in the end if the president is unable to serve due to a condition perceived by the vice president, and either the Cabinet or a body approved by Congress.
Analysis
On the National Constitution Center’s Interactive Constitution explainers on the 25th Amendment, scholars Brian C. Kalt and David Pozen explain the process if the vice president and the Cabinet agree the president can’t serve.
“If this group declares a President ‘unable to discharge the powers and duties of his office,’ the Vice President immediately becomes Acting President. If and when the President pronounces himself able, the deciding group has four days to disagree. If it does not, the President retakes his powers. But if it does, the Vice President keeps control while Congress quickly meets and makes a decision,” said Kalt and Pozen. “The voting rule in these contested cases favors the President; the Vice President continues acting as President only if two-thirds majorities of both chambers agree that the President is unable to serve.”
In November 2018, the Congressional Research Service reviewed the 25th Amendment’s disability provisions. It said that James Madison in his 1787 Constitutional Convention notes stated that John Dickinson complained the concept of presidential inability was “too vague.” Dickinson asked, “What is the extent of the term ‘disability’& who is to be the judge of it?” Madison did not record a response from the convention floor. This continues to be an issue today with respect to the language of Section 4 of the 25th Amendment concerning a president’s “inability” to discharge the office, and the uncertainty of what that actually means in practice as it has never been invoked.
Another issue with Section 4 could be the lack of definition of what happens if the Vice President is also disabled when the question of the President’s disability is raised.
Yale scholar Akhil Reed Amar has written frequently on this subject. “It provides no satisfactory mechanism for determining vice-presidential disability,” said Amar in a 2010 article. “Compounding the problem, if the Vice President ever were to be disabled (or if the vice presidency were at any point vacant) the Twenty-fifth Amendment’s elaborate machinery for determining presidential disability will seize up; much of the key decision making under this Amendment pivots on determinations that must be personally made by the Vice President.”
And John Feerick, the legal scholar who had a direct role in crafting the 25th Amendment’s language, also has written extensively about this question. In a 2011 law review article, Feerick agreed with Amar that Congress needed to take a look at the vice presidential disability issue. “Succession events occurring absent a functioning Vice President could create difficult scenarios, as outlined in Professor Amar’s articles,” Feerick said.
Resources
The Interactive Constitution
Constitution Daily
We the People Podcasts
Akhil Reed Amar of Yale University and Norman Ornstein of the American Enterprise Institute explain how succession works and how it can be improved.
Scott Bomboy is the editor in chief of the National Constitution Center.
