The Twenty-Fifth Amendment and Presidential Inability, Part 7: Issues for Congress

Legal Sidebari

The Twenty-Fifth Amendment and
Presidential Inability, Part 7: Issues for
Congress
March 28, 2024
This Legal Sidebar post is the last 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 issues for Congress related to the Twenty-Fifth Amendment. 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 and implementation. Additional information on this topic is
available at the Constitution Annotated: Analysis and Interpretation of the U.S. Constitution and in
several CRS reports.
Issues for Congress
Although the Twenty-Fifth Amendment has helped to ensure the prompt and orderly transition of
executive power on several occasions, various commentators have observed that the Amendment does not
address all contingencies. In 2012, a Fordham University Law School Clinic on Presidential Succession
identified several potential challenges:
• “Inability of the President when there is a vacancy in the office of Vice President”;
• “Dual inability of the President and Vice President”;
• “Inability of the Vice President”; and
• “Inability of a statutory successor while acting as President.”
Congressional Research Service
https://crsreports.congress.gov
LSB11137
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

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Congressional Research Service
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For instance, if the Vice President were unable to discharge his duties, then a President who anticipates
becoming incapacitated might refrain from invoking Section 3 to “transfer his powers even briefly to an
unable Vice President.” Vice-presidential inability would also prevent executive branch officials from
invoking Section 4 because any presidential inability determination requires the Vice President’s
participation. Furthermore, under Section 1, an incapacitated Vice President would automatically succeed
to the presidency in the event of a presidential vacancy, but federal law does not specifically provide for
an official to serve as Acting President for the duration of the new President’s inability.
Because Article II’s Presidential Succession Clause authorizes Congress to enact legislation addressing
dual inability or vacancy scenarios, some scholars have recommended that Congress authorize a disabled
President (or Acting President) to transfer his powers and duties to a statutorily designated successor, who
would serve as Acting President in the absence of a healthy Vice President. Some commentators have also
suggested that Congress empower a statutory successor, acting in conjunction with a majority of the
Cabinet or other congressionally created body, to determine whether the President (or Acting President) is
unable to fulfill his duties when there is no functioning Vice President. Other commentators have argued
that Article II’s Succession Clause and the Presidential Succession Act implicitly permit the officer
designated as “next in line” to the presidency to determine presidential and vice-presidential inability in
the absence of a healthy Vice President.
Members of Congress and academics have also debated the meaning of “presidential inability” for
purposes of Sections 3 and 4 of the Twenty-Fifth Amendment. Congressional hearings and debates
suggest that the Amendment’s framers intentionally left the terms “inability” and “unable” ambiguous so
that future decisionmakers would retain flexibility to address unforeseen contingencies that prevent the
President from fulfilling his constitutional responsibilities. The Amendment’s legislative history suggests
that physical or mental inability, whether temporary or permanent, could qualify as an “inability” under
either section. However, as one commentator has observed, the Amendment’s framers did not intend for
the notion of “presidential inability” to encompass “unpopularity, incompetence, impeachable conduct,
poor judgment, [or] laziness.” As a practical matter, because the Supreme Court has been reluctant to
decide questions textually committed to other branches of government, the ultimate discretion to define
presidential “inability” might rest with the President, as provided in Section 3, or with the Vice President,
Cabinet, and Congress, as provided in Section 4.
Other approaches consider how Congress implements the Twenty-Fifth Amendment. For example, some
policymakers and legal scholars have looked at whether Congress should exercise its Section 4 powers to
create a “disability review body” to evaluate presidential inability in conjunction with the Vice President.
Such a panel, which could be of limited duration, would displace the Cabinet’s default role in making that
determination. At least some of the Twenty-Fifth Amendment’s framers wanted to give Congress the
flexibility to provide for another group of officials—which might include Cabinet members—to
participate with the Vice President in determining presidential inability if experience had shown this to be
“desirable.” However, although a disability review body might prove useful if the President fired (or
threatened to fire) Cabinet secretaries who voted to transfer his powers to the Vice President under
Section 4, some commentators have expressed concerns that evaluation of presidential inability by
officials outside of the executive branch could violate separation-of-powers principles. It also appears that
the President could veto legislation establishing another body to evaluate presidential inability, subject to
potential congressional override.
The Twenty-Fifth Amendment’s framers were aware of the Amendment’s potential shortcomings. During
House floor debates on the draft Twenty-Fifth Amendment, House Judiciary Committee Chairman
Emanuel Celler echoed many Members’ views when he remarked that “[n]o bill can be perfect” but that
the Amendment was a “well-rounded, sensible, and efficient approach toward a solution of a perplexing
problem—a problem that has baffled us for over 100 years.”

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Congressional Research Service
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Author Information

Brandon J. Murrill

Attorney-Adviser (Constitution Annotated)




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

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