The Twenty-Fifth Amendment and Presidential Inability, Part 5: Congressional Debates

The Twenty-Fifth Amendment and Presidential Inability, Part 5: Congressional Debates

Legal Sidebari

The Twenty-Fifth Amendment and
Presidential Inability, Part 5: Congressional
Debates
March 28, 2024
This Legal Sidebar post is the fifth 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 major congressional debates surrounding the Twenty-Fifth Amendment’s
framing. 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; early congressional action on the Amendment in Congress; and the Amendment’s
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.
Major Congressional Debates
House and Senate debates on the joint resolutions proposing the Twenty-Fifth Amendment centered on
the language that would become Section 4, which addresses the involuntary transfer of the President’s
powers and duties to the Vice President during episodes of presidential inability. By contrast, Sections 1,
2, and 3 do not appear to have been as controversial. Section 1 codifies the precedent first established in
1841 by President John Tyler upon the death of President William Henry Harrison 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 2, which establishes the process for filling a vice-presidential vacancy,
was intended to ensure that the nation would “always possess a Vice President” who would be
“compatible with the President,” could serve as President if called upon, and would likely continue the
President’s policies. To promote accountability to the electorate, the Twenty-Fifth Amendment’s framers
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required that each chamber of Congress confirm any vice-presidential nominee before the individual
could take office.
Section 3 allows an incapacitated President—or a President that anticipates inability—to relinquish his
constitutional responsibilities voluntarily to the Vice President, who serves as Acting President for the
duration of the President’s inability. During House floor debates, Representative Emanuel Celler of New
York observed that Section 3 “removes the reluctance of both the President and Vice President to move
when necessity so dictates. The President is assured of his return to office. The Vice President, as Acting
President, will not face the charge that he is usurping the office of President.”
Section 4, which prompted the most congressional debate, allows the Vice President and a majority of the
Cabinet—or, alternatively, the Vice President and a majority of another body that Congress designates by
law—to initiate the transfer of an incapacitated President’s powers and duties to the Vice President.
Section 4 also provides mechanisms for (1) the President to declare that he has recovered; (2) the Vice
President and a majority of the Cabinet, or, alternatively, the Vice President and a majority of a
congressionally established body, to challenge the President’s declaration; and (3) Congress to decide
disputes between the President and relevant officials over the issue.
One significant debate over Section 4 was whether the Constitution should contain detailed mechanisms
on presidential inability instead of authorizing Congress to address pertinent issues through legislation.
Some Members of Congress argued that authorizing Congress to address presidential inability by
legislation would preserve flexibility for future policymakers, while opponents of this approach argued
that it would grant Congress too much power over the presidency. Some Members also observed that
Congress might fail to resolve uncertainty over presidential inability and succession by declining to adopt
the necessary legislation. At least one Representative argued that Congress might change rules on
presidential inability frequently, adding to uncertainty and instability in the law. Congress ultimately
decided to retain Section 4’s detailed mechanisms for addressing presidential inability.
The Twenty-Fifth Amendment’s framers also addressed concerns that the Vice President, Cabinet, or
Congress would abuse Section 4’s inability mechanisms for political purposes, thereby displacing an
elected President and undermining the government’s stability. To address such concerns, the
Amendment’s framers included various “checks and balances” and accountability mechanisms intended
to preserve the “institutional integrity” of the executive branch and presidency. For example, the framers
(1) required both the Vice President and executive branch officials close to the President—all of whom
could monitor the President’s condition and would presumably be loyal to him—to initiate presidential
inability determinations unless Congress established a different body to act with the Vice President; (2)
required Congress to weigh in on presidential inability, generally within 21 days, in the event of a dispute
between the President and relevant officials; (3) required a two-thirds majority vote in both chambers of
Congress—higher than the threshold to impeach and remove a President from office—to sustain a finding
of presidential inability over the President’s objection; and (4) clarified that the Vice President acts as
President until the President declares that he has recovered. Nonetheless, the Twenty-Fifth Amendment’s
framers observed that the Amendment’s successful operation would depend on the good faith actions of
the officials charged with implementing it.
Congressional debates on Section 4 also focused on whether Congress should create a “disability review
body” to replace the Cabinet’s default role in evaluating presidential inability in conjunction with the Vice
President and whether the amendment should define “presidential inability.” Part 7 of this Sidebar series
addresses these debates in more detail. Congress has never created a disability review body or enacted a
specific definition of presidential inability.

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Author Information

Brandon J. Murrill

Attorney-Adviser (Constitution Annotated)

Disclaimer
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