Twenty-Fifth Amendment

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.

To ensure that the United States will always possess a functioning President and Vice President, the Twenty-Fifth Amendment provides for the prompt, orderly, and democratic transfer of executive power.1 The Amendment clarifies and supplements the Presidential Succession Clause2 in Article II of the Constitution by: (1) confirming that the Vice President becomes President when the latter dies, resigns, or is removed from office as a result of impeachment proceedings; (2) requiring the President to fill a vice presidential vacancy with Congress’s approval; and (3) establishing mechanisms for transferring an incapacitated President’s powers and duties to the Vice President.3 The Supreme Court has not definitively interpreted the Twenty-Fifth Amendment,4 and legal scholars continue to debate its provisions addressing presidential inability.5

Section 1 of the Twenty-Fifth Amendment provides that if the President dies, resigns, or is removed from office as a result of impeachment proceedings, then the Vice President “shall become President.” 6 Section 1 was intended to clarify, consistent with long-established historical practice, that the Vice President immediately succeeds to the presidency in such circumstances instead of serving as the “Acting President.” 7 In 1974, Section 1 resulted in Vice President Gerald Ford’s succession to the presidency when President Richard Nixon resigned under threat of impeachment for his role in the Watergate scandal.8

Section 2 of the Twenty-Fifth Amendment provides for filling a vice-presidential vacancy that occurs during a President’s term of office.9 From the beginning of President George Washington’s first term in 1789 to the Twenty-Fifth Amendment’s ratification in 1967, the vice presidency was vacant for more than 37 years cumulatively because of the officeholder’s death, resignation, or succession to the presidency.10

, U.S. Senate, https://www.senate.gov/about/officers-staff/vice-president/vice-presidents.htm. In the event of a vacancy, Section 2 requires the President to nominate a new Vice President to take office for the remainder of the President’s term after confirmation by a majority vote in each chamber of Congress.11 Section 2 of the Twenty-Fifth Amendment was invoked twice during the 1970s to fill vice- presidential vacancies resulting from Vice President Spiro Agnew’s and President Nixon’s resignations.12

Sections 3 and 4 of the Twenty-Fifth Amendment address circumstances in which the President is unable to discharge his powers and responsibilities under the Constitution.13 Prior to the Amendment’s ratification, at least two Vice Presidents declined to assume an incapacitated President’s powers and duties because of legal uncertainty as to whether the President could reclaim them upon recovery.14 Section 3 allows an incapacitated President—or a President who anticipates becoming incapacitated15 —to relinquish his powers and duties voluntarily by sending a written declaration to the President pro tempore of the Senate16

, U.S. Senate, https://www.senate.gov/about/officers-staff/president-pro-tempore.htm. and the Speaker of the House of Representatives17 stating that he is unable to discharge them.18 Thereafter, until the President communicates that he is again able to discharge his responsibilities, the Vice President serves as Acting President.19 Since the Twenty-Fifth Amendment’s ratification, a few presidents have invoked Section 3 to transfer their powers and duties to the Vice President temporarily while undergoing medical procedures.20

Section 4, which has never been invoked, is perhaps the most controversial of the Twenty-Fifth Amendment’s provisions. This section allows the Vice President and a majority of the Cabinet or, alternatively, the Vice President and a majority of another body that Congress designates by law in place of the Cabinet,21 to initiate the transfer of an incapacitated President’s powers and duties to the Vice President.22 Section 4 might be invoked when the President is unable or unwilling to declare that he is incapacitated.23 To invoke Section 4, the Vice President and a majority of the relevant body must send a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives stating that the President is unable to discharge his office’s powers and duties.24 Following this declaration, the Vice President immediately assumes such powers and duties as Acting President.25

If the President subsequently declares in writing to the relevant congressional presiding officers that he is again able to fulfill his responsibilities, then he “shall resume the powers and duties of his office” unless the Vice President (as Acting President) and a majority of the appropriate body transmit a contrary written notice within four days.26 In that event, Congress must assemble within 48 hours to determine who will discharge the President’s duties.27 Unless Congress determines within 21 days of receiving the Vice President and relevant body’s declaration28 “by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office,” 29 the President resumes his responsibilities.30 On the other hand, if Congress determines that the President is unable to fulfill his duties, then the Vice President continues to discharge them as Acting President.31

Footnotes

1

See, e.g., 111 Cong. Rec. 3251 (1965) (statement of Sen. Bayh); id. at 3275 (statement of Sen. McClellan); id. at 7942 (statement of Rep. McCulloch); id. at 7959 (statement of Rep. Schmidhauser); 109 Cong. Rec. 24420 (1963) (statement of Sen. Bayh).

2

See U.S. Const. art. II, § 1, cl. 6 ( “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.” ); see also ArtII.S1.C6.1 Succession Clause for the Presidency. Congress has exercised its authority under Article II’s Presidential Succession Clause to establish a line of succession to the presidency in the event that both the President and Vice President are unable to discharge the powers and duties of the presidency. See Presidential Succession Act of 1947, 3 U.S.C. § 19.

3

U.S. Const. amend. XXV. The introductory text of the joint resolution proposing the Twenty-Fifth Amendment required three-fourths of the state legislatures to ratify the Amendment within seven years of its submission to the states in order for it to become part of the Constitution. S.J. Res. 1, 89th Cong., 1st Sess., 79 Stat. 1327, 1327 (1965). The proposed Twenty-Fifth Amendment was submitted to the states for potential ratification on July 6, 1965. The Amendment attained the three-fourths majority of the states necessary for ratification on February 10, 1967. See Intro.3.6 Post-War Amendments (Twenty-Third Through Twenty-Seventh Amendments).

4

See Clinton v. Jones, 520 U.S. 681, 698 (1997) (stating, in nonbinding dicta, that the Twenty-Fifth Amendment’s drafters wanted to “ensure continuity in the performance of the powers and duties of the [presidency]” ) (citation omitted); Freytag v. Comm’r, 501 U.S. 868, 887 & n.4 (1991) (stating in dicta that the term “principal officers of the executive departments” in Section 4 of the Twenty-Fifth Amendment refers to the heads of the Cabinet departments listed in 5 U.S.C. § 101).

5

See, e.g., Second Fordham Univ. Sch. of Law Clinic on Presidential Succession, Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System, 86 Fordham L. Rev. 917 (2017). This group of essays uses the terms “disability,” “inability” and “incapacity” interchangeably. For more on debates over the meaning of “inability” in the Twenty-Fifth Amendment, see id.

6

U.S. Const. amend. XXV, § 1. In a 1985 opinion, the Department of Justice’s Office of Legal Counsel advised that the Vice President would immediately relinquish “all duties and responsibilities as Vice President” when he succeeds to the presidency. See Operation of the Twenty-Fifth Amendment Respecting Presidential Succession, 9 Op. O.L.C. 65, 67 (1985) (recommending that the Vice President promptly take the oath of office upon succeeding to the presidency).

7

For more on the historical succession practices that informed Section 1 of the Twenty-Fifth Amendment, see .

8

For more on Watergate and Nixon’s resignation, see .

9

U.S. Const. amend. XXV, § 2. The original Presidential Succession Clause did not address vice presidential vacancies. See U.S. Const. art. II, § 1, cl. 6.

10

See

About the Vice President: Vice Presidents of the United States

, U.S. Senate, https://www.senate.gov/about/officers-staff/vice-president/vice-presidents.htm.

11

U.S. Const. amend. XXV, § 2. See also 111 Cong. Rec. 7944, 7946 (1965) (statement of Rep. Celler) (suggesting that Section 2 requires a separate vote in each chamber of Congress).

12

President Nixon’s resignation occasioned the use of Section 2 because Vice President Gerald Ford succeeded Nixon, resulting in a vice presidential vacancy. See .

13

U.S. Const. amend. XXV, §§ 3–4.

14

See .

15

A few Presidents have voluntarily relinquished their powers and duties under Section 3 when they anticipated that they would become temporarily unable to fulfill their responsibilities as a result of a medical procedure. See ; 111 Cong. Rec. 7941 (1965) (statement of Rep. Poff) (contending that Section 3 encompasses situations “in which the President recognizes his inability—or the imminence of his inability—and wishes voluntarily to vacate his office for a temporary period” ); John D. Feerick, The Proposed Twenty-Fifth Amendment to the Constitution, 34 Fordham L. Rev. 173, 199 (1965) (arguing, based on the Amendment’s legislative history, that Section 3 permits the President “to declare himself disabled either for an indefinite or a specified period of time, and to name the hour when the Vice President is to begin as Acting President.” ).

16

In addition to fulfilling other roles, the president pro tempore “preside[s] over the Senate in the absence of the Vice President.” Traditionally, the Senate has elected the senior Member of the majority party to this position.

About the President Pro Tempore

, U.S. Senate, https://www.senate.gov/about/officers-staff/president-pro-tempore.htm.

17

The Speaker of the House is elected by all House Members. In additional to fulfilling other roles, the House Speaker presides over the House.

Leadership

, U.S. House of Representatives, https://www.house.gov/leadership.

18

U.S. Const. amend. XXV, § 3. See also Operation of the Twenty-Fifth Amendment Respecting Presidential Succession, 9 Op. O.L.C. 65, 69–70 (1985) (advising that the transfer of power takes effect “immediately” upon the President’s communication of the written declaration “and is not delayed until receipt of the document” by congressional leadership) (citing S. Rep. No. 89-66, at 12 (1965); H.R. Rep. No. 89-203, at 13 (1965)). For a discussion of when the President may temporarily transfer certain of his powers and duties to subordinate officials without relying on the Twenty-Fifth Amendment, see Presidential Succession and Delegation in Case of Disability, 5 Op. O.L.C. 91, 93 (1981) (discussing 3 U.S.C. § 301 and other provisions of federal law).

19

U.S. Const. amend. XXV, § 3. The vice presidency does not become vacant while the Vice President serves as Acting President. However, the President pro tempore of the Senate would presumably serve as President of the Senate during that time. See U.S. Const. art. I, § 3, cl. 5 ( “The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.” ); 111 Cong. Rec. 3270 (1965) (remarks of Sens. Bayh and Saltonstall); Operation of the Twenty-Fifth Amendment Respecting Presidential Succession, 9 Op. O.L.C. 65, 70 (1985) (citations omitted).

20

See .

21

According to the House Judiciary Committee report on the joint resolution proposing the Twenty-Fifth Amendment, the phrase “principal officers of the executive departments” in Section 4 refers to “Presidential appointees who direct the 10 executive departments named in 5 U.S.C. § 1 [now codified as § 101], or any executive department established in the future, generally considered to comprise the President’s Cabinet.” H.R. Rep. No. 89-203, at 3 (1965); accord Freytag v. Comm’r, 501 U.S. 868, 887 & n.4 (1991) (stating in dicta that the term “principal officers of the executive departments” in Section 4 of the Twenty-Fifth Amendment refers to the heads of the Cabinet departments listed in ); S. Rep. No. 89-66, at 2 (1965) (stating that “principal officers” are “members of the President’s official Cabinet” ); 111 Cong. Rec. 3283, 15383 (1965) (statements of Sen. Bayh); id. at 7938 (statement of Rep. Celler) (stating that the “principal officers” are the Cabinet secretaries). 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. For various views as to whether acting Cabinet Secretaries may participate in presidential inability determinations, see H. Rep. No. 89-203, at 3 (1965); 111 Cong. Rec. 3284 (1965) (statement of Sens. Bayh and Hart); id. at 15380 (statement of Sen. Robert F. Kennedy); id. at 15382 (statement of Sen. McCarthy); id. at 15385 (statement of Sen. Bayh); James A. Heilpern, Acting Cabinet Secretaries and the Twenty-Fifth Amendment, 57 U. Rich. L. Rev. 1169, 1174 (2023).

22

U.S. Const. amend. XXV, § 4.

23

See, e.g., 111 Cong. Rec. 3254 (1965) (statement of Sen. Bayh); id. at 7938 (statement of Rep. Celler).

24

U.S. Const. amend. XXV, § 4; see also Operation of the Twenty-Fifth Amendment Respecting Presidential Succession, 9 Op. O.L.C. 65, 69 (1985) (advising that the “written declaration of disability” can take the form of multiple, separate declarations and does not require the signature of the Vice President or a majority of the relevant officials to be effective if their “assent” is otherwise established “in a reliable fashion [and] they direct their names to be added to the document” ).

25

U.S. Const. amend. XXV, § 4.

26

Id. The Twenty-Fifth Amendment’s framers appear to have understood that the Vice President would continue to serve as Acting President during these four days. See, e.g., 111 Cong. Rec. 3284–85 (1965) (statements of Sens. Bayh and Allott); id. at 7939 (statement of Rep. Celler); id. at 7963–66 (rejecting an amendment by Sen. Moore providing that the President would immediately resume his powers and duties upon declaring that he had recovered). See also Joel K. Goldstein, Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4, 21 U. Pa. J. Const. L. 73, 125 (2018) (arguing that “[t]he text of Section 4, its history, structure, and logic clearly provide that the Vice President retains presidential power during this period (unless he acquiesces in the President’s position).” ). During floor debates on Section 4, some Members of Congress suggested that the President could resume his office before the end of the four-day period following his declaration of recovery, provided that he obtained the Vice President’s support. 111 Cong. Rec. 3285 (1965) (statement of Sen. Bayh); id. at 7939, 15214 (statements of Rep. Celler).

27

U.S. Const. amend. XXV, § 4.

28

Congress must decide whether the President will resume his duties within 21 days after receiving the written declaration from the Vice President and other relevant officials. If Congress is not in session, then it must decide the issue “within twenty-one days after [it] is required to assemble.” U.S. Const. amend. XXV, § 4.

29

Legislative history suggests that each chamber of Congress would vote separately on whether the President could resume his powers and duties. See H. Rep. No. 89-564, at 4 (1965) (Conf. Rep.); 111 Cong. Rec. 7944, 7946 (1965) (statements of Rep. Celler). If either chamber of Congress voted on the issue of the President’s inability but failed to obtain a two-thirds majority in favor of the Vice President (and relevant body’s) challenge to the President’s recovery declaration, then, according to some of the Amendment’s framers, the President would immediately resume his powers and duties. 111 Cong. Rec. 15215 (statement of Rep. Poff); id. at 15379 (statement of Sen. Bayh).

30

U.S. Const. amend. XXV, § 4. The Twenty-Fifth Amendment’s framers appear to have understood that the Vice President would continue to serve as Acting President while Congress decides the issue of presidential inability. See, e.g., S. Rep. No. 89-66, at 3 (1965); H.R. Rep. No. 89-203, at 3 (1965); 111 Cong. Rec. 7939–40 (1965) (statements of Reps. Celler and Duncan).

31

U.S. Const. amend. XXV, § 4. Some of the Twenty-Fifth Amendment’s framers suggested that the President can submit additional notices of recovery, triggering the congressional decisionmaking process an indefinite number of times. See Presidential Inability: Hearings on H.R. 836 et al. Before the H. Comm. on the Judiciary, 89th Cong. 94, 101 (1965) (statements of Sen. Bayh and Attorney General Katzenbach).