The Twenty-Fifth Amendment and Presidential Inability, Part 1: Introduction

The Twenty-Fifth Amendment and Presidential Inability, Part 1: Introduction

Legal Sidebari

The Twenty-Fifth Amendment and
Presidential Inability, Part 1: Introduction
March 28, 2024
This Legal Sidebar post is the first in a seven-part series that discusses the Twenty-Fifth Amendment to
the Constitution. In an effort to ensure that the United States will always possess a functioning President
and Vice President, the Twenty-Fifth Amendment seeks to promote the prompt, orderly, and democratic
transfer of executive power. In particular, the Amendment establishes procedures for addressing
presidential inability and vacancies that arise in the presidency or vice presidency. Because Congress may
play a role in implementing the Twenty-Fifth Amendment, understanding the Amendment’s history and
drafting may assist Congress in its legislative activities.
This Sidebar post provides an overview of the Twenty-Fifth Amendment’s procedures. Other Sidebars in
this series discuss the history of the Presidential Succession Clause and presidential succession, as well as
the Amendment’s drafting in Congress, implementation, and unresolved issues. Additional information on
this topic is available at the Constitution Annotated: Analysis and Interpretation of the U.S. Constitution
and in several CRS reports.
Overview
Ratified in 1967, the Twenty-Fifth Amendment clarifies and supplements the Presidential Succession
Clause 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, with Congress’s approval, to fill a vice presidential vacancy; and (3) establishing
mechanisms for transferring an incapacitated President’s powers and duties to the Vice President. The
Supreme Court has not definitively interpreted the Amendment, and legal scholars continue to debate its
provisions on presidential inability.
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.” 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.” 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.
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Section 2 of the Twenty-Fifth Amendment provides for filling a vice-presidential vacancy that occurs
during a President’s term of office. The original Presidential Succession Clause did not address vice
presidential vacancies. 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. 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.
Section 2 of the Twenty-Fifth Amendment was invoked twice during the 1970s to fill vice-presidential
vacancies resulting from Vice President Spiro T. Agnew’s and President Nixon’s resignations. (President
Nixon’s resignation occasioned the use of Section 2 because Vice President Gerald Ford succeeded
Nixon, resulting in a vice presidential vacancy.)
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. 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. Section 3 allows an
incapacitated President—or a President who anticipates becoming incapacitated—to relinquish his powers
and duties voluntarily by sending a written declaration to the President pro tempore of the Senate and the
Speaker of the House of Representatives stating that he is unable to discharge them. Thereafter, until the
President communicates that he is again able to discharge his responsibilities, the Vice President serves as
Acting President. (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.) 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.
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 “principal officers
of the executive departments”—understood by the Amendment’s framers and Supreme Court to refer to
the Cabinet secretaries—or, alternatively, the Vice President and a majority of another body that Congress
designates by law in place of the Cabinet, to initiate the transfer of an incapacitated President’s powers
and duties to the Vice President. Section 4 might be invoked when the President is unable or unwilling to
declare that he is incapacitated. 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.
Following this declaration, the Vice President immediately assumes such powers and duties as Acting
President.
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 (who continues to serve as Acting President) and a majority of the appropriate body
transmit a contrary written notice within four days. If the Vice President and appropriate body transmit
such a notice, Congress must assemble within 48 hours to determine who will discharge the President’s
duties. Unless Congress determines within 21 days of receiving the Vice President and relevant body’s
declaration (or, if Congress is not in session, 21 days of when it is required to assemble) “by two-thirds
vote of both Houses that the President is unable to discharge the powers and duties of his office,” the
President resumes his responsibilities. 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.
On the other hand, if Congress timely determines that the President is unable to fulfill his duties, then the
Vice President continues to discharge them as Acting President. Some of the Twenty-Fifth Amendment’s

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framers suggested that the President can thereafter submit additional notices of recovery, hypothetically
triggering the congressional decisionmaking process an indefinite number of times.

Author Information

Brandon J. Murrill

Attorney-Adviser (Constitution Annotated)

Disclaimer
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