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




February 5, 2021
The Twenty-Fifth Amendment: Sections 3 and 4—Presidential
Disability

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


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