Presidential Disability: An Overview

Presidential Disability: An Overview

Order Code RS20260
July 12, 1999
CRS Report for Congress
Received through the CRS Web
Presidential Disability: An Overview
(name redacted)
Analyst in American National Government
Government and Finance Division
Summary
In the original document, Article II, section 1, clause 6 of the Constitution provided
that, in the event of the President’s “Inability to discharge the Powers and Duties” of his
office, “the Same shall devolve on the Vice President.” This language was superseded
by the 25 Amendment to the Constitution, ratified in 1967. Al
th
though there were several
instances of severe presidential disability between 1789 and 1967, no Vice President
sought to assume the chief executive’s powers and duties during this period. Sections
3 and 4 of the 25 A
th
mendment currently govern cases of presidential disability. Under
section 3, if the President declares (in a written declaration to the Speaker of the House
of Representatives and the President pro tempore of the Senate) that he is disabled for
any reason, the Vice President assumes his powers and duties as Acting President.
Section 4 provides for cases in which the President may not be able to transmit a
disability declaration. In these circumstances, the Vice President and the cabinet or “such
other body as Congress may by law provide” (a disability review body) can, by majority
vote, declare the President to be disabled. It also empowers the President to declare his
disability ended, again by written declaration, and resume his powers and duties. If,
however, the Vice President and a majority of either the cabinet or a disability review
body, rule otherwise, then Congress decides the issue. A vote of two-thirds of both
houses within 21 days is required to determine the President to be disabled and continue
the disability; otherwise, he resumes his powers and duties. Neither section 3 nor section
4 has been invoked since the amendment was ratified. This report will be updated if
events warrant. For information on sections 1 and 2 of the 25 Amendment, whic
th
h
provide for presidential succession, consult Presidential and Vice Presidential
Succession, CRS Report 98-731 GOV.
Constitutional Provisions: 1789-1967
The Constitution’s original provisions governing presidential disability or inability
were inserted in the document late in the proceedings of the Philadelphia Convention of
1787, where the delegates approved the formula that appears in Article II, section 1:
Congressional Research Service ˜ The Library of Congress

CRS-2
In Case of the Removal of the President from Office, or of his Death, Resignation,
or Inability to discharge the Powers and Duties of the said Office, the Same shall
devolve on the Vice President, and the Congress may by Law provide for the Case of
Removal, Death, Resignation or Inability, both of the President and Vice President,
declaring what Officer shall then act as President, and such Officer shall act
accordingly, until the Disability be removed, or a President shall be elected [emphases
added].
Constitutional historians note that the clause does not define disability or differentiate
between it and inability, although contemporary dictionaries characterized the former as
a complete lack of power, and the latter as lack of ability to do a certain thing. Further,
1
while specifying who acts as President in the event of presidential disability (the Vice
President), the clause provides no guidance on how it would be invoked, by whom, or for
what length of time, or on how a disability could be terminated or rescinded.2
The ambiguities inherent in the disability section may have contributed to its
dormancy over the long period that elapsed between adoption of the Constitution and
ratification of the 25 Amendment. During these
th
178 years, eight Presidents died in office
and were succeeded by their Vice Presidents without serious incident, notwithstanding
controversy as to whether the Vice President acted as President, or became the President
under such circumstances. In that same period, howe
3
ver, a number of Presidents suffered
from disabling illnesses for varying periods, but no Vice President ever became Acting
President during any one of these episodes. For instance, President George Washington
was disabled for a month in 1790 by a near-fatal case of pneumonia. James A. Garfield
lingered for 79 days after being shot by an assassin in 1881. Before Garfield’s death,
various plans were suggested for Vice President Chester A. Arthur to assume the powers
and duties of the presidency, but none progressed beyond the talking stage. In 1893,
Grover Cleveland secretly underwent two cancer surgeries performed on a yacht cruising
Long Island Sound, and subsequently spent two months recuperating in Massachusetts.
Presidential disabilities of the 20 century are perhaps better known. On October 2,
th
1919, President Woodrow Wilson suffered a stroke from which he never fully recovered
during the remainder of his term. The gravity of his illness was concealed from the press
and public, and access to the President was strictly controlled. Vice President Thomas
Marshall was excluded from political or executive duties throughout the period, and
Secretary of State James Lansing was forced to resign when Wilson learned that he had
convened the cabinet informally to deal with pressing questions. Although Wilson’
4
s
health improved, several measures were introduced in the 66 Congress providing for a
th
1John D. Feerick, From Failing Hands: The Story of Presidential Succession (New York:
Fordham University Press, 1965), pp. 44, 49.
R
2
uth C. Silva, Presidential Succession (New York: Greenwood Press, 1968 (c. 1961)), pp. 85-
110.
3For information on precedents established by the first vice presidential succession, see U.S.
Library of Congress, Congressional Research Service, Presidential and Vice Presidential
Succession, by (name redacted), CRS Report 98-731 GOV (Washington, Aug. 21, 1998).
4Michael Nelson and Margaret Jane Wyszomirski, “Removal of the President,” in Guide to the
Presidency , vol. 1 (Washington: Congressional Quarterly Inc., 1996), pp. 453-454.

CRS-3
disability declaration, while some argued that the Supreme Court should issue a writ of
mandamus, directing the Vice President to act as President. Grave doubts as to the
constitutionality of such measures deterred any concrete action, however.5 Some
historians assert that President Franklin D. Roosevelt was increasingly incapacitated by
cardiovascular disease in the last years of his presidency, but, as with Wilson, this
knowledge was suppressed due to wartime conditions.6 Finally, President Dwight
Eisenhower was incapacitated to some degree on three occasions: he was hospitalized for
seven weeks in 1955, following a heart attack; in 1956, he underwent surgery to remove
a benign intestinal obstruction; and, finally, in 1957, he suffered a mild stroke, but returned
to work in less than a week. To deal with these instances, Eisenhower reached a
7
n
informal agreement with Vice President Nixon, under which the latter conducted most
cabinet meetings and routine executive business during the chief executive’s illness, but
deferred to Eisenhower on substantive policy questions.8
The 25 Amendment: Conception, Passage, and Ratification
th
Following the death of President Roosevelt in 1945, the question of presidential
succession was revisited, leading to the Presidential Succession Act of 1947 (61 Stat.
380), which inserted the Speaker of the House and the President pro tempore of the
Senate into the line of succession after the Vice President, but ahead of the cabinet.
President Eisenhower’s illnesses stimulated further interest in the disability question, but
it was the shocking assassination of President John F. Kennedy in 1963 that provided the
catalyst for congressional action. Following the President’s death, the nation was
confronted with a lengthy vacancy in the vice presidency and concerns over the health of
the new chief executive and his potential successors. In this c
9
ontext, Senator Birch Bayh,
Chairman of the Subcommittee on Constitutional Amendments of the Senate Judiciary
Committee, sought to remedy both the succession and the disability questions with a
constitutional amendment, S.J. Res. 1, introduced in the 89 Congress on January 6, 1965.
th
The measure, which enjoyed bipartisan support, was reported favorably by the Senate
Subcommittee on Constitutional Amendments on February 1, 1965, and by the full
Judiciary Committee on February 10. The primary objection in Senate floor debate
concerned its detailed procedures for resolving presidential disability disputes. Some
Senators questioned the wisdom of including such a level of detail within the amendment,
preferring statutes that would be authorized by the amendment. Supporters of the Bayh
5Silva, Presidential Succession, pp. 64-66.
6Kenneth R. Crispell and Carlos F. Gomez, Hidden Illness in the White House (Durham, NC:
Duke University Press, 1988), pp. 74-85, 120-159. Although Roosevelt suffered from
cardiovascular disease, the cause of death was cerebral hemorrhage.
7Feerick, The Twenty-Fifth Amendment, pp. 17-23.
Ibid
8
.
9The vice presidency was vacant for 14 months following the Kennedy assassination. Vice
President Lyndon B. Johnson had suffered a heart attack in 1955; House Speaker John W.
McCormack and Senate President pro tempore Carl T. Hayden were, respectively, 71 and 86 years
old.

CRS-4
proposal prevailed, and the resolution was adopted on February 19, with only minor
technical amendments, by a vote of 72 to 0.10
The House of Representatives began consideration of its version, H.J. Res. 1, with
hearings before the full Judiciary Committee in early 1965. Here, again, debate centered
on procedures by which a President could be declared disabled, and on subsequent
disputes that might arise as to whether—and when—the period of disability was over. The
committee reported its version of the amendment, incorporating changes indicated by these
concerns, on March 24. The House passed its own amended version of the proposal on
April 13, voting to substitute it for the Senate form. Conferees required two months to
resolve differences between the competing amendments before the House approved the
conference report by a voice vote on June 30, and the Senate concurred on July 6 by a
vote of 68 to 5.
11
The proposed amendment was circulated to the states on July 7, 1965. Although it
enjoyed widespread support, state legislatures were not able to move rapidly, since many
had adjourned for the year by the time the proposal was transmitted. Ratification by the
necessary 38 states (three-fourths, as provided by the Constitution) required 19 months,
and was completed on February 10, 1967, at which time the 25 Amendment became an
th
operative part of the Constitution.
Sections 3 and 4: Procedures and Discussion
Sections 3 and 4 of the 25 Amendment establish procedures concerning disability
th
of the President.12 Section 3 is activated when the President transmits a written
declaration that he is “unable to discharge the powers and duties of his office” to the
President pro tempore of the Senate and the Speaker of the House of Representatives, thus
providing for voluntary implementation of disability procedures. The Vice President then
assumes these powers and duties as Acting President, and continues to serve until the
President transmits another declaration to the same congressional officers stating that he
is no longer disabled. Although nothing prohibits the President from stating a time certain
for recovery of his powers and duties, the language of the amendment appears to require
a revocation message to end the disability. The most obvious use of section 3 would be
in the event a President was being treated for a serious illness, or, undergoing any sort of
medical procedure that required anesthesia. In these circumstances, the Vice President,
as Acting President, would temporarily exercise all the chief executive’s powers; he would,
however, lose his position as President of the Senate, as provided in the Constitution.13
Opinions differ as to whether section 3 has ever been implemented. On July 13, 1985,
“Constitutional
10
Amendment on Presidency,” Congressional Quarterly Almanac, 89th Congress,
1st Session, 1965, vol. 21 (Washington: Congressional Quarterly Service, 1966), p. 578.
Ibid
11
., pp. 580-581.
Sect
12
ion 1 of the Amendment provides that the Vice President becomes President when the chief
executive is removed from office, dies, or resigns. Section 2 provides that when the Vice
Presidency is vacant, the President nominates a replacement, subject to confirmation by a majority
vote of both houses of Congress.
“The
13
Senate shall chuse ... a President pro tempore, in the absence of the Vice President, or when
he shall exercise the Office of President of the United States.” (Constitution, Article 1, section 3.

CRS-5
President Ronald Reagan informally transferred presidential powers to Vice President
George Bush for several hours while he was undergoing cancer surgery. Although his
actions generally followed procedures established in section 3, he specifically refrained
from invoking the 25 Amendment, declining to set a precedent that might bind futur
th
e
Presidents.14 Some experts, however, insist that President Reagan did, in fact, trigger
section 3 by his actions, notwithstanding his own assertions. Another unresolve
15
d
question concerning this section is whether it could be appropriately used to cover a
political disability on the part of a President. Succession and disability scholar John D.
Feerick notes that President Richard Nixon was urged to step aside under section 3 in
1973 and 1974, in order to devote his full attention to defending himself against the
Watergate-related charges that eventually led to his resignation.
16
Section 4 is activated when either the Vice President and a majority of the cabinet,
or the Vice President and a majority of “such other body as Congress by law may provide”
(sometimes referred to as a disability review body), declare that the President is unable to
discharge the powers and duties of his office. This constitutes contingent implementation
of disability procedures, a process that could be initiated if the President were unable (or
unwilling) to declare himself disabled. Section 4 further provides that the President
resumes office when he transmits, to the President pro tempore and the Speaker, a
declaration that no disability exists. If, however, the Vice President and a majority of the
Cabinet, or the Vice President and a majority of the disability review body (if one has been
established by law), declare to the contrary within four days of the President’s declaration,
Congress must decide the issue. If it is not in session, it must reassemble within 48 hours
to consider the question, and it must render a decision within 21 calendar days. Only if a
two-thirds majority of both houses of Congress votes to certify that the President is
disabled does the Vice President continue as Acting President; otherwise, the President
resumes his powers and duties.
Section 4 is intended, as one source puts it, to provide for “a sick president who
refuses or is unable to confront his disability. Put another way, this section was basically
framed to apply to a president who is disabled but unwilling to step aside.” Anothe
17
r
study suggests, “it is the type of provision which theoretically might have been used in the
last months of the Wilson and the Franklin D. Roosevelt presidencies.” Several of it
18
s
“fine print” provisions deserve comment. First, it should be noted that the Vice President
is the indispensable actor in section 4: it cannot be invoked without his agreement.
“Letter
14
to the President Pro Tempore of the Senate and the Speaker of the House on the Discharge
of the President’s Powers and Duties During His Surgery, July 13, 1985,” Public Papers of the
Presidents of the United States, Ronald Reagan, 1985, Book II (Washington: GPO, 1988), p. 919;
Kenneth W. Thompson, “Presidential Disability, Succession, and the Twenty-fifth Amendment,”
in James P. Pfiffner and R. Gordon Hoxie, eds., The Presidency in Transition (New York: Center
for the Study of the Presidency, 1989), pp. 434-435.
15Feerick, The Twenty Fifth Amendment, pp. xvi-xvii.
Ibid
16
., p. 198.
17White Burkett Miller Center, Commission on Presidential Disability and the 25 Amendment
th
,
Report of the Miller Center Commission on Presidential Disability and the Twenty-fifth
Amendment (Charlottesville, VA: The Center, 1988), p. 16.
Thompson, “Presidential Disability, Succession, and the Twenty-fifth Amendment,” p. 441.
18

CRS-6
Second, the amendment’s wording, “the principal officers of the executive departments or
such other body as Congress may by law provide” refers in the former case to the cabinet,
but only to those members who are the heads of departments, thus excluding such cabinet-
rank officials as the U.S. Trade Representative and the Ambassador to the United Nations.
According to Feerick, the legislative history is unclear as to whether acting department
heads were intended to participate in a disability decision.19 Third, the use of the
construction either/or when referring to the cabinet and the “other body” strongly indicates
that, if Congress were to establish such a body, it would supplant the cabinet for the
purposes of invoking section 4. Finally, the language of the amendment clearly requires
the approval of both the Vice President and a majority of the cabinet, or, alternatively, the
Vice President and the “other body,” to declare a section 4 presidential disability. Other
points concern the disability review body itself: the form it would take (Feerick suggests
that Congress could designate itself, expand or restrict membership of the cabinet, or
combine the cabinet with other officials); the leg
20
islative vehicle used to create one (either
a joint resolution or a bill, both requiring presidential approval, since the body must be
created “by law”); and whether it would be appropriate for Congress to establish one in
advance of an anticipated disability.
Section 4's complexity, and its potential for an involuntary finding of presidential
disability, has troubled some observers: “... during consideration of the 25 Amendment,
th
Congress considered a number of possible horror story scenarios.” It can be argued that
21
the section provides opportunities for political mischief by a disloyal Vice President and
cabinet, or congressional usurpation of executive prerogatives. It can be further suggested
that Section 4, like the impeachment process, is so powerful, and so fraught with
constitutional and political implications, that it would never be used, except in the most
compelling circumstances, since its invocation might well precipitate, ipso facto, a
constitutional crisis. On the other hand, Senator Bayh and other crafters of the
amendment included powerful checks to deter abuse: the President’s ability to challenge
a section 4 declaration of disability; the requirement of a timely decision by Congress; and,
ultimately, the need for a two thirds vote in both houses to sustain a section 4 finding of
disability by the Vice President and the cabinet or disability review body. As one study
concluded, “Because the Amendment deals with unpredictable human frailties, it is not a
perfect solution, but few exist in constitutional history. The task is to make the most of
what the Amendment encompasses. Success depends on the good judgment and good
sense of our leaders and the citizenry.”22
Feerick,
19
The Twenty-Fifth Amendment, pp. 202-203.
Ibid
20
., p. 206.
Miller Center,
21
Report of the Miller Center Commission, p. 3.
Thompson, “Presidential Disability, Succession and the Twenty-fifth Amendment,” p. 443.
22

EveryCRSReport.com
The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the
Library of Congress, charged with providing the United States Congress non-partisan advice on
issues that may come before Congress.
EveryCRSReport.com republishes CRS reports that are available to al Congressional staff. The
reports are not classified, and Members of Congress routinely make individual reports available to
the public.
Prior to our republication, we redacted names, phone numbers and email addresses of analysts
who produced the reports. We also added this page to the report. We have not intentional y made
any other changes to any report published on EveryCRSReport.com.
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 permission of the copyright holder if you wish to copy or
otherwise use copyrighted material.
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' institutional role.
EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim
copyright on any CRS report we have republished.