House and Senate floor debates on the joint resolutions proposing the Twenty-Fifth Amendment centered on the language that would become Section 4, which addresses the involuntary transfer of the President’s powers and duties to the Vice President during episodes of presidential inability. By contrast, Sections 1, 2, and 3 were not as controversial. Section 1 merely codifies the Tyler Precedent,1 providing that if the President dies, resigns, or is removed from office as a result of impeachment proceedings, then the Vice President “shall become President.” 2 Section 2, which establishes the process for filling a vice-presidential vacancy,3 was intended to ensure that the nation would “always possess a Vice President” who would be “compatible with the President,” could serve as President if called upon, and would likely continue the President’s policies.4 To promote accountability to the electorate, the Twenty-Fifth Amendment’s framers required that Congress confirm any vice presidential nominee before the individual could take office.5

Section 3 allows an incapacitated President—or a President that anticipates inability—to relinquish his constitutional responsibilities voluntarily to the Vice President, who serves as Acting President for the duration of the President’s inability.6 During House floor debates, Representative Emanuel Celler of New York observed that Section 3 “removes the reluctance of both the President and Vice President to move when necessity so dictates. The President is assured of his return to office. The Vice President, as Acting President, will not face the charge that he is usurping the office of President.” 7

Section 4, which prompted the most congressional debate, 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—to initiate the transfer of an incapacitated President’s powers and duties to the Vice President.8 Section 4 also provides mechanisms for (1) the President to declare that he has recovered; (2) the Vice President and a majority of the Cabinet, or, alternatively, the Vice President and a majority of a congressionally established body, to challenge the President’s declaration; and (3) Congress to decide disputes between the President and relevant officials over the issue.9

One significant debate over Section 4 was whether the Constitution should contain detailed mechanisms on presidential inability instead of authorizing Congress to address pertinent issues through legislation.10 Some Members of Congress argued that authorizing Congress to address presidential inability by legislation would preserve flexibility for future policymakers,11 while opponents of this approach argued that it would grant Congress too much power over the presidency.12 Some Members of Congress also observed that Congress might fail to resolve uncertainty over presidential inability and succession by declining to adopt the necessary legislation.13 Congress ultimately decided to retain Section 4’s detailed mechanisms for addressing presidential inability.14

The Twenty-Fifth Amendment’s framers also addressed concerns that the Vice President, Cabinet, or Congress would abuse Section 4’s inability mechanisms for political purposes, thereby displacing an elected President and undermining the government’s stability.15 To address such concerns, the Amendment’s framers included various “checks and balances” and acountability mechanisms intended to preserve the “institutional integrity” of the executive branch and presidency.16 For example, the framers (1) required both the Vice President and executive branch officials close to the President—all of whom could monitor the President’s condition and would presumably be loyal to him—to initiate presidential inability determinations unless Congress established a different body to act with the Vice President;17 (2) required Congress to weigh in on presidential inability, within 21 days of assembling, in the event of a dispute between the President and relevant officials; (3) required a two-thirds majority vote in both chambers of Congress to sustain a finding of presidential inability over the President’s objection;18 and (4) clarified that the Vice President acts as President until the President declares that he has recovered.19 Nonetheless, the Twenty-Fifth Amendment’s framers observed that the Amendment’s successful operation would depend on the good faith actions of the officials charged with implementing it.20

Congressional debates on Section 4 also focused on whether Congress should create a “disability review body” to replace the Cabinet’s role in evaluating presidential inability in conjunction with the Vice President.21 Such a panel, which could be of limited duration,22 would displace the Cabinet’s default role in making that determination.23 At least some of the Twenty-Fifth amendment’s framers wanted to give Congress the flexibility to provide for another group of officials—which might include Cabinet members—to participate with the Vice President in determining presidential inability if experience had shown this to be “desirable.” 24 For example, some framers believed that a disability review body might prove useful if the President fired (or threatened to fire) Cabinet secretaries who voted to transfer his powers to the Vice President under Section 4.25

Some congressional debates also explored whether the Twenty-Fifth Amendment should define “presidential inability.” Legislative history materials suggest that the Amendment’s framers intentionally left the terms “inability” and “unable” ambiguous so that future decisionmakers would retain flexibility to address unforeseen contingencies that prevent the President from fulfilling his constitutional responsibilities.26 The Amendment’s legislative history suggests that physical or mental inability, whether temporary or permanent, could qualify as an “inability” under either section.27 Congress has never created a disability review body or enacted a specific definition of presidential inability.28

Footnotes

1

Upon President William Henry Harrison’s 1841 death, Vice President John Tyler established the historical precedent that the Vice President succeeds to the presidency automatically for the remainder of the President’s term. For more on the Tyler Precedent and historical succession practices that informed Section 1 of the Twenty-First Amendment, see “Presidential and Vice-Presidential Vacancies Before the Twenty-Fifth Amendment’s Ratification.”

2

See U.S. Const. amend. XXV, § 1 (text as ratified).

3

See U.S. Const. amend. XXV, § 2 (text as ratified).

4

See S. Rep. No. 89-66, at 13 (1965). Section 2 recognized that the vice presidency had become an important office during the twentieth century that should not remain vacant. See, e.g., 111 Cong. Rec. 7949 (1965) (statement of Rep. Cohelan); 110 Cong. Rec. 22987 (1964) (statement of Sen. Bayh).

5

See S. Rep. No. 89-66, at 14–15 (1965); 110 Cong. Rec. 22994 (statement of Sen. Bible). The House participates with the Senate in considering the nomination of a new Vice President because the vice presidency is an elected office rather than an appointed one. Id. The Senate rejected an amendment that would have required Congress to vote on a President’s nominee for a vice presidential vacancy “immediately.” 111 Cong. Rec. 3281–82 (1965) (rejecting substitute amendment of Sen. Bass). The Senate also rejected an amendment that would have reconvened the Electoral College to choose a Vice President in the event of a vacancy. Id. at 3272–74 (rejecting amendment of Sen. Thurmond).

6

U.S. Const. amend. XXV, § 3 (text as ratified); 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” ).

7

111 Cong. Rec. 7938 (statement of Rep. Celler).

8

U.S. Const. amend. XXV, § 4 (text as ratified). 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.

9

U.S. Const. amend. XXV, § 4 (text as ratified).

10

E.g., S. Rep. No. 89-66, at 17–18 (1965) (statement of Sen. Dirksen).

11

See id.; 111 Cong. Rec. 3257, 3272 (1965) (rejecting Dirksen amendment).

12

111 Cong. Rec. 3269 (1965) (statement of Sen. Ervin); id. at 7940 (statement of Rep. Poff). See also John D. Feerick, The Proposed Twenty-Fifth Amendment to the Constitution, 34 Fordham L. Rev. 173, 188 (1965) (citing congressional debates).

13

See, e.g., 111 Cong. Rec. 3271 (1965) (statements of Sens. Bayh and Saltonstall). At least one Representative argued that Congress might change rules on presidential inability frequently, adding to uncertainty and instability in the law. See id. at 7940 (statement of Rep. Poff).

14

See U.S. Const. amend. XXV, § 4 (text as ratified).

15

H.R. Rep. No. 89-203, at 19–20 (1965) (statement of Rep. Hutchinson). For further discussion of such concerns, see 111 Cong. Rec. 7958 (1965) (statement of Rep. White).

16

Joel K. Goldstein, Taking From the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 Fordham L. Rev. 959, 987–93 (2010) (explaining how the Twenty-Fifth Amendment embodies the principles of “separation-of-powers,” “checks and balances,” “democratic pedigree,” and “accountable decisionmaking,” among others).

17

See H.R. Rep. No. 89-203, at 13 (1965); 111 Cong. Rec. 7941 (1965) (statement of Rep. Poff).

18

The Twenty-Fifth Amendment’s framers required a two-thirds vote of both Houses of Congress to prevent the President from resuming his powers and duties so that it would be more difficult to remove a President for inability than it would to impeach and remove him from office for misconduct. H.R. Rep. No. 89-203, at 14 (1965); 111 Cong. Rec. 7938 (1965) (statement of Rep. Celler) (observing that the procedures of Sections 3 and 4 were intended to favor the President because he is the “elected representative of the people” ); id. at 7943 (statement of Rep. McCulloch) ( “The burden, it will be seen, is placed upon the Vice President and the Cabinet to prove the continuance of the disability and not on the President who has the primary claim to the office. The Congress is designated as the ultimate arbiter because it is believed that, as the elected representative of the people, they share the greatest trust of the people.” ).

19

H.R. Rep. No. 89-203, at 13–14 (1965).

20

Id. at 13.

21

For more on congressional debates over Section 4’s intended operation, see the footnotes accompanying the discussion of that section in “Overview of Twenty-Fifth Amendment, Presidential Vacancy and Disability.”

22

According to at least one of the Twenty-Fifth Amendment’s framers, Congress would possess significant flexibility to determine the disability review body’s duration, rules of procedure, and other characteristics. 111 Cong. Rec. 15386 (1965) (statement of Sen. Javits).

23

U.S. Const. amend. XXV, § 4 (stating that “a majority” of principal officers or “such other body” as Congress creates by law may trigger Section 4 along with the Vice President by determining that the President is disabled); see also 111 Cong. Rec. 15382–83 (1965) (statement of Sen. Bayh) (attempting to assuage concerns that the Amendment would allow the Vice President to choose between the Cabinet and an “other body” when seeking to declare presidential inability). Bayh stated that the “other body” would replace the Cabinet for purposes of determining presidential inability. Id.

24

111 Cong. Rec. 7941 (1965) (statement of Rep. Poff); see also id. at 7942 (statement of Rep. McCulloch) id. at 3257, 15380 (statements of Sen. Bayh); id. at 15590 (statement of Sen. Ervin).

25

See 111 Cong. Rec. 15382 (1965) (statement of Sen. Robert F. Kennedy).

26

E.g., 111 Cong. Rec. 7941 (1965) (statement of Rep. Poff) ( “It was decided that it would be unwise to attempt such a definition within the framework of the Constitution. To do so would give the definition adopted a rigidity which, in application, might sometimes be unrealistic.” ).

27

E.g., Presidential Inability and Vacancies in the Office of Vice President: Hearing Before the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 89th Cong. 20 (1965) (statement of Sen. Bayh) ( “[T]he intention of this legislation is to deal with any type of inability, whether it is from traveling from one nation to another, a breakdown of communications, capture by the enemy or anything that is imaginable. The inability to perform the powers and duties of the office for any reason is inability under the terms that we are discussing.” ); 111 Cong. Rec. 3257 (1965) (statement of Sen. Bayh); id. at 3278 (statement of Sen. Ervin); id. at 3282 (statement of Sen. Bayh) (stating that Section 4 addresses circumstances in which the President is “[e]ither unable to make or communicate his decisions as to his own competency to execute the powers and duties of his office.” ); id. at 7941 (statement of Rep. Poff); id. at 15381 (statements of Sen Bayh and Sen. Robert F. Kennedy) (suggesting that Section 4 inability meant “total disability to perform the powers and duties of [the President’s] office” or, perhaps, “physical or mental inability to make or communicate his decision regarding his capacity and physical or mental inability to exercise the powers and duties of his office” ); id. (statement of Sen. Bayh) (suggesting even a presidential inability of short duration could become dangerous in the event of a national crisis).

28

For a discussion of legislation that would create a disability review body, see Thomas H. Neale, Cong. Rsch. Serv. No. R45394, Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress (2018), >https://crsreports.congress.gov/product/pdf/R/R45394.