The Twenty-Fifth Amendment and Presidential Inability, Part 4: Early Congressional Action

The Twenty-Fifth Amendment and Presidential Inability, Part 4: Early Congressional Action

Legal Sidebari

The Twenty-Fifth Amendment and
Presidential Inability, Part 4: Early
Congressional Action
March 28, 2024
This Legal Sidebar post is the fourth 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 discusses early congressional action with respect to the issues of presidential inability
and succession. Other Sidebars in this series discuss the Twenty-Fifth Amendment’s procedures; the
framing of the Presidential Succession Clause at the Constitutional Convention of 1787; the history of
presidential succession; and 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.
Early Congressional Action
For more than a century before the Twenty-Fifth Amendment’s ratification, Members of Congress
periodically raised concerns about ambiguities in the Constitution’s Presidential Succession Clause.
Congressional action on presidential inability acquired new urgency after President Dwight D.
Eisenhower suffered a heart attack in 1955. Representative Emanuel Celler of New York, chairman of the
House Judiciary Committee, and Senator Estes Kefauver of Tennessee, chairman of the Senate Judiciary
Committee’s Subcommittee on Constitutional Amendments, held hearings in the House and Senate,
respectively, on legislation to address presidential inability. The hearings explored several issues,
including (1) how, if at all, to define presidential inability; (2) who should initiate the transfer of an
incapacitated President’s powers and duties to an Acting President; (3) who should determine presidential
inability and its termination; and (4) whether an amendment to the Constitution on the subject was
necessary or desirable.
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By early 1958, after President Eisenhower suffered a third illness in office, many Senators had concluded
that a constitutional amendment was necessary. However, no proposal was considered on the House or
Senate floors.
The 88th Congress: Reaction to the Kennedy Assassination
President John F. Kennedy’s assassination in November 1963 prompted renewed congressional interest in
a constitutional amendment addressing presidential succession and inability. Lyndon B. Johnson’s
succession to the presidency, which left the vice presidency vacant for 14 months, also highlighted the
Constitution’s lack of a mechanism for filling vice presidential vacancies. At the time, Johnson’s potential
successors under the Presidential Succession Act, House Speaker John McCormack and Senate President
pro tempore Carl Hayden, were 71 and 86 years of age, respectively.
In the 88th Congress, Senator Birch Bayh of Indiana became Chair of the Senate Judiciary Committee’s
Subcommittee on Constitutional Amendments after Senator Estes Kefauver’s death. On December 12,
1963, Senator Bayh introduced S.J. Res 139, a joint resolution proposing a constitutional amendment
addressing presidential vacancy, vice presidential vacancy, and presidential inability. In statements on the
Senate floor, Bayh emphasized the importance of ensuring that the nation would always possess a
President “capable of making rational decisions and rational determinations” in an age of nuclear
weapons. S.J. Res. 139, which drew in part upon earlier proposals and protocols developed by the
Eisenhower Administration on the issue of presidential inability, was referred to the Senate Judiciary
Committee.
In August 1964, the Senate Judiciary Committee favorably reported a revised version of the joint
resolution. According to the committee’s report, the draft amendment was intended to (1) separate
constitutional rules on presidential succession, which involves a permanent vacancy, from rules on
inability, which may be temporary; (2) specify who should determine presidential inability so that the
President’s powers and duties could be transferred promptly to the Vice President; (3) clarify that an
incapacitated President may “resume the functions of his office upon recovery” if he had self-certified his
inability; (4) provide that the Vice President serves only as Acting President during periods of presidential
inability; and (5) provide rules for vice presidential succession. The Senate approved the joint resolution
unanimously on September 29, 1964. However, the 88th Congress adjourned sine die—without a date to
reconvene—without the House taking action on the proposed amendment.
The 89th Congress: Committee Action and Initial Passage
On January 4, 1965, one day after the 89th Congress convened, President Lyndon B. Johnson referenced
presidential succession and inability in his State of the Union Speech. Johnson noted that “[e]ven the best
of government is subject to the worst of hazards.” He promised to “propose laws to insure the necessary
continuity of leadership should the President become disabled or die.” On January 6, Senator Bayh
reintroduced his presidential succession and inability amendment from the 88th Congress as S.J. Res. 1,
and it was referred to the Senate Judiciary Committee. Representative Celler, again Chairman of the
House Judiciary Committee, introduced identical legislation in the House as H.J. Res. 1.
The next month, the Senate Judiciary Committee reported S.J. Res. 1 favorably with amendments.
According to the committee’s report, one of the amendment’s key purposes was to encourage the
President to relinquish his powers and duties voluntarily in the event of inability by assuring that he could
resume his office upon recovery in such circumstances. The committee wrote that a constitutional
amendment was necessary because of uncertainty over whether Congress could achieve the committee’s
goals by legislation and a need to ensure presidential successors’ legal and political legitimacy.

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The House Judiciary Committee favorably reported H.J. Res. 1 with amendments that designated specific
congressional officers to receive presidential inability determinations and specifically allowed the
President to resume office upon recovery from a self-declared inability without challenge. The committee
also clarified that only certain Cabinet-level officers should participate in presidential inability
determinations unless Congress provided by law for a different body to exercise that function jointly with
the Vice President. To prevent Congress from indefinitely blocking a healthy President from resuming
office, the committee specified a 10-day deadline for Congress to assemble and decide disputes between
the President and other relevant officials on the issue of presidential inability.
On February 19, 1965, the Senate unanimously approved the revised S.J. Res. 1. The House approved the
revised H.J. Res. 1 as a substitute for the Senate joint resolution on April 13, 1965, by a vote of 368 to 29.

Author Information

Brandon J. Murrill

Attorney-Adviser (Constitution Annotated)

Disclaimer
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