On February 19, 1965, the Senate unanimously approved the revised S.J. Res. 1, which proposed an amendment to the Constitution on presidential vacancy, vice presidential vacancy, and presidential inability.1 The House approved the revised H.J. Res. 1 as a substitute for the Senate joint resolution on April 13, 1965 by a vote of 368 to 29.2 A Conference Committee was convened to reconcile differences in the House and Senate versions of the joint resolution.3 As compared to the House resolution, the Senate version featured a longer, seven-day time frame for the Vice President and a majority of the Cabinet (or other body) to challenge a President’s assertion that he had recovered from an inability under Section 4.4 The Senate version also lacked the House version’s specific deadlines for Congress to assemble and resolve disputes between the President and the officials challenging the President’s recovery declaration.5

As a compromise, the conferees recommended adopting (1) a four-day deadline for the Vice President (as Acting President) and Cabinet (or other body) to challenge a President’s recovery declaration under Section 4; (2) a 48-hour deadline for Congress to assemble (if not in session) after the relevant officials challenge the President’s recovery declaration; and (3) a 21-day deadline for Congress to decide the issue of presidential inability once it has convened, after which the President would automatically resume the powers and duties of his office in the absence of a two-thirds vote in each chamber declaring him unable to serve.6 The House agreed to the Conference Report on June 30, 1965 by voice vote.7 The Senate concurred on July 6, 1965 by a vote of 68 to 5.8 The amendment was then submitted to the states for potential ratification.

Just over eighteen months later, on February 23, 1967, the Administrator of General Services certified that the requisite three-fourths of the states had ratified the Twenty-Fifth Amendment on February 10.9 At a White House ceremony, President Lyndon B. Johnson remarked that “in this crisis-ridden era there is no margin for delay, no possible justification for ever permitting a vacuum in our national leadership.” 10

(Feb. 23, 1967), Am. Presidency Project, >https://www.presidency.ucsb.edu/documents/remarks-ceremony-marking-the-ratification-the-presidential-inability-25th-amendment-the. He stated that the Twenty-Fifth Amendment had clarified “the crucial clause that provides for succession to the Presidency and for filling a Vice Presidential vacancy.” 11

Footnotes

1

111 Cong. Rec. 3286 (1965).

2

Id. at 7968–69.

3

See H. Rep. No. 89-564, at 1 (1965) (Conf. Rep.).

4

See 111 Cong. Rec. 15378 (statement of Sen. Bayh). Consistent with Supreme Court dicta and the Amendment’s legislative history, this essay uses the term “Cabinet” to refer to the “principal officers of the executive departments” designated in 5 U.S.C. § 101.

5

111 Cong. Rec. 15379 (statement of Sen. Bayh).

6

H. Rep. No. 89-564, at 3–4 (1965) (Conf. Rep.). The conferees also decided that presidential inability declarations would be sent to the Speaker of the House and the President pro tempore of the Senate. Id. at 3; 111 Cong. Rec. 15378 (1965) (statement of Sen. Bayh). The conferees adopted the House language clarifying that a President could resume his powers and duties at any time after a self-certified Section 3 disability by transmitting proper notice. See H. Rep. No. 89-564, at 3 (1965) (Conf. Rep.); 111 Cong. Rec. 15214 (1965) (statement of Rep. Poff).

7

111 Cong. Rec. 15216 (1965).

8

Id. at 15596.

9

Certification of Amendment to Constitution of the United States Relating to Succession to the Presidency and Vice Presidency and to Cases Where the President Is Unable to Discharge the Powers and Duties of His Office, 81 Stat. 983, 983–84 (1967); Intro.3.6 Post-War Amendments (Twenty-Third Through Twenty-Seventh Amendments), >https://constitution.congress.gov/browse/essay/intro.3-6/ALDE_00000153/ (showing that three-fourths of the states had ratified the Twenty-Fifth Amendment as of February 10, 1967). At the time of the Twenty-Fifth Amendment’s ratification, federal law authorized the Administrator of General Services to certify that the states had ratified an amendment to the Constitution. See Act of Oct. 31, 1951, ch. 655, § 2(b), 65 Stat. 710, 710. In 1985, the National Archivist assumed this role. See Pub. L. No. 98-497, tit. I, §§ 107(d), 301, 98 Stat. 2285, 2291 (1984) (codified at 1 U.S.C. § 106(b)).

10

President Lyndon B. Johnson,

Remarks at Ceremony Marking the Ratification of the Presidential Inability (25th) Amendment to the Constitution

(Feb. 23, 1967), Am. Presidency Project, >https://www.presidency.ucsb.edu/documents/remarks-ceremony-marking-the-ratification-the-presidential-inability-25th-amendment-the.

11

Id.