The Twenty-Fifth Amendment: Sections 3 and 4—Presidential Disability

The Twenty-Fifth Amendment: Sections 3 and 4—Presidential Disability

Updated July 2, 2024
The Twenty-Fifth Amendment: Sections 3 and 4—Presidential
Disability
The Twenty-Fifth Amendment, proposed by Congress in
from, and arguably are more potentially complex and
1965 and ratified by the states in 1967, provides for
problematic than, those addressed in Section 3.
presidential succession, vice presidential vacancies, and
presidential disability. Presidential inability or disability is
Some of the differences between the two sections are
specifically covered in Section 3, whereby the President
notable. Section 3 can be activated only by the President,
may declare a disability, and Section 4, whereby a
whereas the disability initiation element of Section 4 can be
presidential disability is declared by the Vice President and
implemented only by the Vice President and either (1) a
a majority of the Cabinet or such other body as may be
majority of the Cabinet, or (2) a majority of “such other
established by law.
body as Congress may by law provide.” This envisioned
body will be identified in this publication as the Disability
Section 3: Presidential Declaration of
Review Body (DRB). Section 3 was designed to be invoked
Disability
either in anticipation of presidential inability, or as a
Section 3 of the amendment covers circumstances in which
response to a disability, whereas Section 4 was intended by
the amendment’s sponsors to be activated only
a President is able to declare himself or herself “unable to
in response
discharge the powers and duties” of the office
to a presidential disability. Section 3 assumes that the
. When the
President is fully aware and competent, and capable of
disability is removed, the President reclaims the office by a
declaring his disability, whereas Section 4 assumes that the
declaration to that effect. Disabilities may include a sudden
President, for whatever reason, is unable or unwilling to
injury or illness or scheduled medical treatment that might
declare an obvious disability, and that he or she cannot or
leave the President less than fully aware or cognizant for
will not step aside for its duration.
some period of time. It may potentially cover other
situations, such as absence from the country or a period of
Section 4’s complexity and concern about its potential for
intense grief, for example, related to the loss of a loved one.
misuse have raised questions among some observers that it
Opinion as to whether a President could invoke Section 3 to
could be implemented for political purposes. During debate
concentrate on defense in a case of impeachment is divided.
on the amendment, its authors and proponents largely
The President activates Section 3 by transmitting a written
rejected such claims. They insisted the section was not
declaration to the President pro tempore of the Senate
intended to facilitate the removal of an unpopular or failed
(President pro tem) and the Speaker of the House of
President, in support of which they cited checks and
Representatives (Speaker). For the duration of the
balances incorporated in the amendment that were designed
disability, the Vice President discharges the President’s
to prevent abuse of the procedure. To date, Section 4 has
powers and duties as Acting President. When the President
not been implemented.
transmits “a written declaration to the contrary” to the
Section 4: Actions
President pro tem and the Speaker, he or she resumes the
powers and duties of the office.
Section 4 authorizes four potential procedures:
When Has Section 3 Been Activated?
(1) a joint declaration of presidential disability by the Vice
This section has been activated several times under
President and a majority of the Cabinet or such other body
(i.e., DRB) as Congress has established by law. When they
circumstances in which the President underwent general
transmit a written message to this effect to the President pro
anesthesia for medical treatment. In 1985, President Ronald
tem and the Speaker, the Vice President immediately
Reagan informally invoked the amendment when he was
assumes the powers and duties of the office as Acting
anesthetized during cancer surgery. President George W.
President;
Bush formally implemented Section 3 twice, in 2002 and
2007, and President Joseph Biden used it once, in 2021,
(2) a declaration by the President that the disability invoked
while they were anesthetized for routine medical
under the provisions set out above no longer exists. If the
procedures.
President’s declaration is not contested by the Vice
President and the Cabinet or DRB within four days, then
Section 4: Contingent Disability
the President resumes the powers and duties of the office;
Section 4 of the Twenty-Fifth Amendment provides for
instances of contingent presidential disability. It covers
(3) the Vice President and a majority of the Cabinet or
instances of presidential disability or inability that differ
DRB, acting jointly, may, however, contest this finding by
a written declaration to the contrary to the aforementioned
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The Twenty-Fifth Amendment: Sections 3 and 4—Presidential Disability
officers. As noted previously, this declaration must be
inclusion of acting Cabinet officers as participants in a
issued within four days of the President’s declaration;
Section 4 ruling was questioned by some Senators.
otherwise, the President resumes the powers and duties of
the office;
Section 4 provides a potential alternative to the Cabinet:
“such other body as Congress may by law provide”—the
(4) if this declaration is transmitted within four days, then
Disability Review Body. Congress has broad authority over
Congress decides the issue. If Congress is in session it has
the composition and duration of a DRB. During debate on
21 days to consider the question. If a two-thirds vote of
the amendment, several options were considered: Congress
Members present and voting in both chambers taken within
could designate itself; retain the Cabinet but enlarge or
this period disputes the President, the Vice President
shrink it; or include a mix of Members of Congress and
continues as Acting President. If less than two-thirds of
distinguished public figures. Others have suggested Justices
Members in both houses vote to confirm the President’s
of the Supreme Court, physicians, and the Surgeon General
disability, the President resumes the powers and duties of
as possible members. Congress could establish the body as
the office. Alternative actions—a decision by Congress not
a permanent institution or require reauthorization at regular
to vote on the question, a decision to vote to sustain the
intervals. The Amendment places a check on Congress by
President’s declaration, or passage of the 21-day deadline
requiring that the DRB be created “by law,” and therefore
without a congressional vote—would also result in the
subject to the full range of the legislative process before it
President’s resumption of the office’s powers and duties.
was enacted, up to and including a presidential veto.
Section 4 does not place a time constraint on creation of a
Section 4: Actors
DRB, which could be established at any time.
The Twenty-Fifth Amendment delegates specific roles in
Section 4 to two people and three institutions: the President;
Congress
the Vice President, including as Acting President; the
The scope of Congress’s duties in a Section 4 disability
Cabinet, the DRB, and Congress.
declaration depends on the circumstances. Assuming an
uncontroversial activation of Section 4 followed by the
The Vice President
President’s declaration of recovery, the only congressional
The Vice President is the indispensable actor in
duty would be for the Speaker and the President pro tem to
implementing a Section 4 declaration of presidential
receive the disability declaration from the Vice President
disability: the amendment’s provisions can be invoked only
and Cabinet (or DRB) and the President’s subsequent
on the Vice President’s initiative or with the Vice
undisputed declaration of recovery.
President’s agreement. The Cabinet or the DRB could
petition the Vice President to initiate the process, but
If, however, the Vice President and the Cabinet or DRB
barring the Vice President’s action, Section 4 cannot be
declare the President disabled, followed by the President’s
implemented.
declaration that the disability has ended and that he or she
plans to resume office, but the Vice President and the
The President
Cabinet or DRB dispute this declaration within four days,
The President’s role under Section 4 is essentially reactive:
then, in the words of the amendment, “Congress shall
the President may issue a declaration stating that he or she
decide the issue.” If Congress is in session on receipt of the
is no longer disabled at any time. The President, who
declaration, it has 21 days to consider the question. If it is
retains office, but not the powers and duties as chief
not in session, the amendment directs Congress to convene
executive throughout a disability, can declare the disability
within 48 hours, which, if added to the 21-day window for
to be ended at any time, and can do so any number of times.
consideration, comprises a theoretical maximum of 23 days.
Neither Section 3 nor Section 4 can affect the President’s
tenure in office—barring death, resignation, or
If Congress determines by a two-thirds vote of the
impeachment, a chief executive who is disabled for any
Members of both houses present and voting that the
length of time continues in office until the term expires.
disability remains, the Vice President continues as Acting
President. If the required two-thirds majority is not obtained
The Cabinet and Disability Review Body
within the specified time period, the President resumes the
For the purposes of determining presidential inability under
powers and duties of the office.
Section 4, the Cabinet consists of “the principal officers of
the executive departments.” At present, there are 15 such
For additional information, please see CRS Report R45394,
agency heads, listed in the order in which their departments
Presidential Disability Under the Twenty-Fifth Amendment:
were established: the Secretaries of State, the Treasury, and
Constitutional Provisions and Perspectives for Congress.
Defense; the Attorney General; and the Secretaries of the
Interior, Agriculture, Commerce, Labor, Health and Human
Thomas H. Neale, a former CRS Specialist in American
Services, Housing and Urban Development, Transportation,
National Government, wrote this product. The listed author
Energy, Education, Veterans Affairs, and Homeland
is available to respond to congressional inquiries on the
Security. According to the House Judiciary Committee’s
topic.
1965 report on the proposed amendment, “the acting head
(of a Cabinet department) would be authorized to
Karen L. Shanton, Coordinator, Analyst in American
participate in a presidential inability determination.” Senate
National Government
debate on the Twenty-Fifth Amendment suggests that
IF11756
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The Twenty-Fifth Amendment: Sections 3 and 4—Presidential Disability

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https://crsreports.congress.gov | IF11756 · VERSION 3 · UPDATED