Amidst the recent discussions about the president’s capacity to conduct the office of the presidency, his fitness to be a candidate for office, and the often-exaggerated posts about the role of a vice president, I felt it was essential to return to the legal side of my brain. In this blog, I aim to outline the 25th Amendment and the circumstances under which a President may be removed from office.

I hope that this blog will be helpful to readers as they consider the country’s current situation. As always, I’m trying to be neutral and simply explain how the amendment’s provisions would operate.

Background

By the mid-1960s, several 20th-century several episodes caused Congress to believe an amendment to the Constitution needed to clarify what would happen if a president became incapacitated. After World War I, President Woodrow Wilson suffered a stroke during his second term in office and was incapacitated for a good bit of the last portion of his tenure. President Roosevelt, who died in office, had brain cancer and was severely limited during his final years in office. This was particularly apparent in Tehran, where many decisions impacted the world for years. Stalin took advantage of the President’s condition during their negotiations.

After World War II, President Eisenhower suffered a severe heart attack during the latter part of his first term and experienced ill health for part of his second term. During Eisenhower’s presidency, he and President Nixon created an arrangement by which presidential powers would be transferred to the vice president in the case of the president’s infirmity.

In 1963, President Kennedy was assassinated under circumstances in which he might have survived but not been capable of conducting the business of the presidency. In particular, President Kennedy’s assassination was instrumental in persuading Congress that a mechanism was needed to allow a president to resign or be removed and succeeded in office by the vice President. In 1867, Senator Birch Bayh introduced into legislation what has become the 25^th Amendment.

25^th Amendment

With this brief history in mind, let us look at the amendment:

Section 1. The first section makes it plain that if a president is removed from office or dies or resigns, the vice president becomes president. The term “removal” means that if a president is impeached, the vice president immediately becomes president. This provision was used at least once when President Nixon resigned and Vice President Ford became President.

Section 2. The second section provides that, whenever there is a vacancy in the vice president’s office, the president nominates a vice president who takes office when confirmed by a majority vote of both houses of Congress. Once again, this provision was used in President Ford’s nomination as Vice president upon Vice President Agnew’s resignation and also when Ford nominated Nelson Rockefeller as vice president.

Section 3. The third section provides that a president may transmit to the President Pro Tempore of the Senate and the Speaker of the House of Representatives a written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written statement to the contrary, the powers of the presidency will be discharged by the vice president as the Acting President. This provision has been used by Presidents Reagan, Bush, and Biden when temporarily incapacitated due to medical procedures. It has become the standard means to provide continuity of leadership when the president must be under anesthesia.

When President Reagan notified Congress, he used the following language:

 After consultation with my Counsel and the Attorney General, I am mindful of the provisions of Section 3 of the 25th Amendment to the Constitution and of the uncertainties of its application to such brief and temporary periods of incapacity. I do not believe that the drafters of this Amendment intended its application to situations such as the instant one.

Nevertheless, consistent with my longstanding arrangement with Vice President George Bush, and not intending to set a precedent binding anyone privileged to hold this Office in the future, I have determined and it is my intention and direction that Vice President George Bush shall discharge those powers and duties in my stead commencing with the administration of anesthesia to me in this instance.

I shall advise you and the Vice President when I determine that I am able to resume the discharge of the Constitutional powers and duties of this Office. [1]

After the surgery, President Reagan sent the following notice that he was resuming his duties as President:

Following up on my letter to you of this date, please be advised I am able to resume the discharge of the Constitutional powers and duties of the Office of the President of the United States. I have informed the Vice President of my determination and my resumption of those powers and duties. [2]

This kind of letter has been used five times in recent years. Vice Presidents Kamala Harris, Richard Cheney, and George H. W. Bush have briefly exercised presidential powers under this provision. Interestingly, it is apparent from Reagan’s letter that the the use of the 25th Amendment for temporary incapacity was not assumed when he wrote his letter.

President Biden’s formula for invoking the 25^th Amendment has been as follows:

Today I will undergo a routine medical procedure requiring sedation. In view of the present circumstances, I have determined to temporarily transfer the powers and duties of the office of President of the United States to the Vice President during the brief period of the procedure and recovery.

In accordance with the provisions of section 3 of the Twenty-Fifth Amendment to the United States Constitution, this letter shall constitute my written declaration that I am presently unable to discharge the powers and duties of the office of the President of the United States.

Pursuant to section 3, the Vice President shall discharge those powers and duties as Acting President until I transmit to you a written declaration that I am able to resume the discharge of those powers and duties. [3]

His formula for resuming office is:

In accordance with the provisions of section 3 of the Twenty-Fifth Amendment to the United States Constitution, I hereby transmit to you my written declaration that I am able to discharge the powers and duties of the Office of the President of the United States and that I am resuming those powers and duties. [4]

At this time, it is clear that a president may temporarily give up his powers to undergo routine medical procedures using the 25th Amendment. It is also clear that a president could transfer power for a more extended period if he felt unable to conduct the duties of the presidency. In other words, President Biden might not need to resign from office this close to an election. He might simply turn over his powers to Kamala Harris as acting president and only resume his duties as president if and when he feels able.

Section 4. It is Section 4 that has been most discussed in recent days. Therefore, I’m going to discuss its provisions at length. This section begins by setting out the situations in which a President may be removed due to incapacity:

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. [5]

Section 4 authorizes the vice president and a majority of the president’s cabinet or Congress to decide if the president cannot perform their duties. Note that neither the vice president nor the principal officers of the executive departments can act alone. It requires that the vice president and a majority of the principal officers of the executive departments agree. This decision becomes active upon transmission to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. Kamala Harris, for example, cannot act alone but only with the agreement of a significant number of the president’s principal officers.

Despite the preceding, the initial decision is not necessarily final. A president may object to the decision made by his vice president and principal officers. If a president disagrees with the decision made by his vice president and a majority of his principal executive officers, he may transmit to Congress his declaration that he is, in fact, not unable to perform his duties. Under these circumstances, after four days the president resumes his duties unless the vice president and a majority of the principal executive officers continue to believe that the president cannot perform his duties and inform both houses of Congress of their decision.

If the vice president and a majority of the principal executive officers continue to believe that the president cannot perform his duties, Congress is authorized to decide by 2/3 vote of both houses of Congress. Under the circumstances, the vice president continues to exercise the president’s responsibilities.

There are several portions of this particular provision that raise issues and confusion. Rather than the vague language of “vice president and a majority of the principal officers of the president,” I think a better method would be to have the decision made by the Vice President,  Secretary of State, the Secretary of the Treasury, the Secretary of Defense, and the Attorney General. It is possible that the Director of the Central Intelligence Agency should be added to this list, though I do not think it necessary.

This is a much smaller group of people and would likely be able to make the decision in a collegial manner. I question whether, even now, other cabinet members would be willing to overcome the judgment of these four principal cabinet officials. It also seems that, in a nuclear age, the timeframe specified in Section 4 for decision is too long. Finally, the Secretary of State should be tasked with convening the group. Protecting a vice president from being seen as leading a coup against a sitting president is important.

Conclusion

Although the 25^th Amendment is an acceptable and workable solution to the problem of presidential succession and incapacity, there remains the question as to what constitutes “inability.” During the Constitutional Convention, John Dickinson raised this exact question concerning the meaning of ‘disability’” and who would be the judge of presidential disability.

The 25^th Amendment does not answer the question of what constitutes a disability. Still, it does answer the question of who determines if one exists. Initially, it is the vice president and the principal officers of the executive branch and, if that decision is not accepted, the Congress by a two-thirds vote. One assumes that getting a two-thirds majority would be difficult unless there was a bipartisan agreement concerning the issue. Furthermore, I think it best to leave the decision to the participants rather than attempting to define disability in the Constitution.

I suppose one final word is in order. No law can substitute for restraint and judgment. President Washington exercised great self-restraint when he refused to run for a third term in office, although he would certainly have been reelected. Those privileged to hold the office of president need to exercise self-restraint in running for office and determining when it is in the country’s best interest for them to no longer hold the office. I don’t like age requirements because there are 70-year-olds who can run marathons and who would be capable of exercising the office of the presidency. On the other hand, there are 40-year-olds who could not. No law can completely substitute for wisdom and self-restraint.

I do hope that this little essay is helpful for readers who would like to understand more about the 25^th Amendment and how it operates to ensure the continuity of presidential authority during a nuclear age.

Copyright 2024, G. Christopher Scruggs, All Rights Reserved.

[1] President Ronald Reagan, “Letter to the President Pro Tempore of the Senate and the Speaker of the House on the Discharge of the President’s Powers and Duties During His Surgery (July 13, 1985). This letter indicates that President Reagan had doubts about the applicability of the Amendment to surgeries, but he invoked its provisions in any case. Subsequent Presidents have simply sent the letter and resumed the office by letter.

[2] Ronald Reagan, Letter to the President Pro Tempore of the Senate and the Speaker of the House on the President’s Resumption of His Powers and Duties Following Surgery (July 13, 1985)

[3] Joseph Biden, Letter to the Speaker of the House of Representatives on the Temporary Transfer of the Powers and Duties of President of the United States (November 19, 2021).

[4] Joseph Biden, Letter to the Speaker of the House of Representatives on Resuming the Powers and Duties of President of the United States (November 19, 2021).

[5] United States Constitution, Amendment 25, Section 4.