Amendment XXV

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Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Passed by Congress July 6, 1965. Ratified February 10, 1967.

Note: Article II, section 1, of the Constitution was affected by the 25th amendment.

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Amendment XXV, Section 4

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Guest Essayist: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation, and a legal commentator

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Amendment XXV, Section 4:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section 4 is the only part of the 25th amendment which has never been invoked. It was created especially to empower the Vice President, together with a majority of the Cabinet or of “such other body as Congress may by law provide”, to declare when necessary that the President of the United States is disabled. This would occur by formally submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. Upon its delivery, the Vice President would become Acting President.

Section 4 is meant to be invoked if Vice President and the Cabinet determine that the President’s incapacitation prevents him from discharging the duties of his office and the President does not voluntarily proffer a written declaration to that effect.

Since this provision may involve a conflict between the President and the rest of his administration there are safeguards to prevent the invocation occurring unfairly. Therefore, the President may resume exercising his Presidential duties in response to the Vice President’s declaration by sending a written declaration to the President pro tempore and the Speaker of the House explaining that he is able to assume his duties.

It is only then that if the Vice President and Cabinet remain unsatisfied with the President’s condition, they may within four days submit another declaration to the House Speaker and the Senate President Pro Tempore that the President is incapacitated.

If this occurs, Both Houses of Congress must assemble within 48 hours if not already in session to make a determination. Within 21 days of assembling or of receiving the second declaration by the Vice President and the Cabinet, a two-thirds vote of each House of Congress is required to affirm the President as unfit. Upon this finding by the Congress, Section 4 states that the Vice President would “continue” to be Acting President.

Should the Congress resolve the issue in favor of the President, or if the Congress makes no decision within the 21 days allotted, then the President would “resume” discharging all of the powers and duties of his office.

If for some reason the Congress sides with the President yet the Vice President and Cabinet determine later that the President is incapacitated, the Vice President can continue to invoke Section 4. The President could send a declaration stating that he is capable of handling his duties and presumably the allotted 21-day Congressional procedure would start again..

History notes that there have been at least two occasions where there was serious consideration of invoking Section 4. The first involved the March 30, 1981 assassination attempt against Ronald Reagan. A group of Presidential advisors gathered at his bedside following his surgery and in conjunction with the doctors findings, determined that he was competent to carry on the affairs of state. The second occasion also involved President Reagan.

Late in his term, President Reagan replaced his chief of staff – Donald Regan – with Howard Baker. Howard Baker was pressed according to media reports to make an assessment as to whether President Reagan then 76 was “mentally sharp.” After holding a meeting with the President and the rest of his staff, Baker easily concluded that President Reagan was capably handling his duties as President.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

June 8, 2012

Essay #80

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Amendment XXV: Presidential Succession Section 3

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Guess Essayist: Horace Cooper, legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

Amendment XXV Section 3

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Since the nation’s founding there have been lingering questions about the presidential succession process.  As drafted by the framers, Article II of the U.S. Constitution provided that the vice president shall “discharge the Powers and Duties” of the president in the case of the president’s “Death, Resignation, or Inability.”

Seemingly clear enough in 1787, it increasingly became obvious there were serious gaps in the process.  Congress was given the responsibility to work out the details for what might occur if both the Vice President and President were incapacitated.  At the same time the Constitution was opaque over what constituted inability or scenarios in which a previously incapacitated President might have his authority restored.

Until the 25th amendment was ratified, the vice presidency had been vacant 16 times after a president or vice president had died or resigned. *

President Garfield tragic assassination was a major case in point regarding Presidential Succession.  Assassin Charles J. Guiteau disgruntled over not being able to obtain a federal post shot President Garfield.  The president would slip in and out of comas over the next 80 days.  As a result he would perform only one official act during this period – the signing of an extradition paper. President Woodrow Wilson was disabled by a stroke in 1919–1921. Many presidents have suffered shorter periods of disability. In no instance were the disability provisions invoked. *

Many in Washington thought that President Eisenhower’s heart attack in 1955 and then subsequent stroke in 1957 made clear that the modern presidency needed a succession plan.  However, the subsequent campaign between Nixon and Kennedy, either of whom would set the record for youngest president in US history moved the issue to the back burner.

Ironically, it was the assassination of President John F. Kennedy in 1963, which brought the issue immediately to the forefront.  This far into the 20th century the United States couldn’t answer long-standing questions such as when the president died, did the vice president automatically become president, or only serve as acting president? What happened when the vice presidency was vacant?  The Twenty-fifth Amendment, would at long last answer these questions.

Stymied during the Eisenhower administration, this time the urgency was clear.  Even The American Bar Association endorsed the proposal.  On January 6, 1965, Senator Birch Bayh formally proposed the amendment.  It was passed by Congress on July 6, 1965, and ratified on February 10, 1967, making it the 25th Amendment to the Constitution.

Reportedly Presidents G HW Bush and Bill Clinton established detailed plans in compliance with Section 3 to deal with incapacity during their terms although ultimately they never needed to be invoked.

Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty

*  THE TWENTY-FIFTH AMENDMENT: ITS COMPLETE HISTORY AND APPLICATIONS,” BY JOHN FEERICK (1992)

June 7, 2012

Essay #79

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Amendment XXV, Section 2

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Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/44178578

Amendment XXV, Section 2:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

The 25rd Amendment, Section 2, explains that in a vacancy in the office of Vice President, the President must act to select a new Vice President, and the Congress must confirm the President’s choice.  More broadly, this Amendment (ratified in 1967) clarifies the line of succession in the executive branch as established in Article II of the Constitution.

Without this Section or this Amendment, it was unclear what to do in the case of a Vice Presidential death or disqualification.  Would the Speaker of the House ascend to this office?  Would the people elect a new Vice President?  Actually, neither happened.  But before the 25th Amendment, the office of the Vice President was simply left vacant 16 times, and it stayed that way until the next election.

Eight times the President of the United States died, and the Vice President left office to become President.  Seven times the Vice President died.  Once, Vice President John Calhoun resigned in order to become a U.S. Senator.

But for the sake of continuity, and in order to keep the important office of Vice President filled, the U.S. ratified this Amendment.  It makes it clear that the President will nominate someone, and the Congress will confirm.  The Congressional confirmation also ensures that the people have a representative voice in approving the new Vice President.

After all, the office of the Vice President carries with it unique Constitutional duties and shouldn’t be left empty.  According to Article I of the Constitution, the Vice President also serves as President of the U.S. Senate, and must cast a vote if there is a tie.  The Vice President is also charged with overseeing, counting and presenting the votes of the Electoral College.

The Vice President also serves an important informal role as the assistant to, or spokesperson for the President.  This role varies from administration to administration, depending on the relationship between the two leaders.

In American history since 1967, only two back-to-back occasions have called for the selection of a Vice President in the manner prescribed by Amendment XXV.  In 1973, Vice President Spiro Agnew resigned.  President Richard Nixon nominated Gerald Ford to the Vice Presidency, and Congress confirmed him.

The following year, 1974, President Nixon resigned.  This meant that Gerald Ford would ascend to the Presidency, allowing him to select a nominee for Vice President to fill his now-vacant office.  He selected Norman Rockefeller, who was also confirmed by the Congress.  This situation resulted in both a President and a Vice President who were not elected in a general election by the Electoral College.

Elections are essential to the American system of governance: They allow the people to select their own leaders.  But, on the rare occasion that these elected leaders cannot perform their duties, Amendment XXV prescribes how new leadership will take charge.

Amendment XXV, Section 2, ensures that the people are at least represented in the selection of this new leadership; the requirement of the new Vice President’s confirmation by Congress means that Members of the House and Senate – the representatives of the people – can check the power of the executive in making this new appointment.

This Section of Amendment XXV serves the important purpose of maintaining the offices of President and Vice President in a manner consistent with government for, of, and by the people.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 6, 2012

Essay #78

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Amendment XXV, Section 1

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Guest Essayist: Hadley Heath, Senior Policy Analyst at the Independent Women's Forum

http://vimeo.com/43441510

Amendment XXV, Section 1:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

The 25th Amendment was ratified in 1967 to clarify the Presidential line of succession established in Article II of the Constitution.  For the sake of national security, and to avoid the turmoil of contested authority – with which the Founders were familiar after a revolutionary war – the new nation established a clear, indisputable contingency plan in the case of a Presidential death, resignation, or removal from office.

This provision in the Constitution points to the underlying idea that America’s destiny does not live or die with one person or one leader, but that she is always ready to continue thriving, even in the face of a national tragedy or crisis.

Fully nine U.S. Vice Presidents have come to the office of President in this way – eight because of the death of a President.  One occasion, the resignation of President Richard Nixon, resulted in Vice President Gerald Ford taking the office of President in 1974.  This has also been the only such occasion (of a Vice President ascending to the office of President) that occurred after the ratification of Amendment XXV.

Previous to this Amendment, the nation looked to Article II, Clause 6 for guidance.  This clause states that in case of a Presidential disqualification or death, the “powers and duties” of the President will devolve to the Vice President.  However, the language of this clause left unclear whether the Vice President would indeed become the next President, or if he would simply execute the duties of the office until a new President could be elected.

Precedent resolved this controversy, when the first Presidential death occurred in 1841.  President William Henry Harrison died in office, and Vice President John Tyler took the oath of office to succeed him as President.

Amendment XXV finally clarified in supreme Constitutional law that the successor to the office of President would indeed become President, not simply become “acting President.”

Because they are established as first in line for succession, the Vice Presidents of the United States are subject to the same eligibility requirements as Presidents.  According to Article II of the Constitution, these requirements are that the person be a natural-born citizen, at least 35 years old, and have spent at least 14 years residing in the U.S.

The Constitution gives Congress the authority to further define the line of succession.  The Presidential Line of Succession Act of 1947 established that the next successors would be the Speaker of the House of Representatives, the President Pro Tempore of the Senate, followed by the members of the Presidential Cabinet in order of their department’s establishment.

The 25th Amendment – along with Article II of the Constitution and the Presidential Line of Succession Act – make provision for the United States to have continuous leadership, even in the event of the disqualification or death of the national leader.  This important establishment, in law, is meant to guarantee a peaceful and seamless transition.

So far in our history, although the occasions have been rare, this part of our government’s structure has provided new leadership in the face of national tragedy and hardship.  This clearly serves to underscore the American idea that the future of our nation is not in the hands of one man or one executive, but that as a people we’ve consented to the leadership of duly elected and vetted leaders, as designed by the Constitution.

Hadley Heath is a Senior Policy Analyst at the Independent Women’s Forum.

June 5, 2012

Essay #77

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Amendment XXV of the United States Constitution

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Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XXV

1: In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

 

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The 25th Amendment, ratified in 1967, answers open questions about presidential succession.

What happens when the president dies in office?

Under Article II, if the president is removed, dies, resigns or is unable to perform his duties, these duties fall to the vice president (section 1, clause 6). Alexander Hamilton said a vice president “may occasionally become a substitute for the president” (Federalist 68). While this seems clear, the exact status of the vice president when taking on the president’s duties or acting as a “substitute” was not certain. When William Henry Harrison died of pneumonia in 1841, Vice President John Tyler insisted on becoming the president rather than just an “acting president” as some urged. See Mark O. Hatfield, Vice Presidents of the United States, 1789-1993 (1997) at http://www.senate.gov/artandhistory/history/resources/pdf/john_tyler.pdf. All eight of the vice presidents who assumed the presidency on the death of the president followed this precedent.  Section One of the 25th Amendment formalized the precedent, specifying that if the president is removed, dies or resigns “the Vice President shall become President.”

What happens if there is a vacancy in the vice presidency?

The eight times a president died in office and the vice president became president there was a vacancy in the vice presidency, as occurred also when seven vice presidents died in office and two resigned. See John D. Feerick, “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment” 79 Fordham Law Review 907, 943-944 (2010). The Congressional Research Service notes, “for some twenty percent of United States history there had been no Vice President to step up.” CRS Annotated Constitution, “Twenty-fifth Amendment” at http://www.gpoaccess.gov/constitution/pdf2002/043.pdf.  Section Two of the 25th Amendment provides the solution for these instances by allowing the president to nominate individuals to fill vacancies in the vice presidency. The person nominated can take office when a majority of the House and Senate confirmed the nomination. Gerald Ford (in 1973) and Nelson Rockefeller (in 1974) became vice presidents following this procedure.

What happens if the president knows he or she cannot fulfill the duties of the presidency?

The Constitution did not specify the procedure to follow in the case of a president being incapacitated. If the president knows of the incapacitation beforehand, as in a planned medical procedure, section Three of the 25th Amendment allows the president to notify the President pro tempore of the Senate and Speaker of the House that the Vice President will be Acting President during a period when the president cannot fulfill the duties of that office. When ready to resume the duties, the president notifies these same officials. President George W. Bush invoked this portion of the Amendment twice for routine medical procedures.

What happens when the president is incapacitated but cannot or will not step aside and let the vice president act as president?

Before his death by assassination, President James A. Garfield lived in a coma for eighty days. President Woodrow Wilson had a debilitating stroke a year and a half before the end of his final term. President Dwight D. Eisenhower experienced a heart attack and stroke while in office. See Calvin Bellamy, “Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool” 9 Boston University Public Interest Law Journal 373, 376-377 (2000). Until, the ratification of section four of the 25th Amendment there was no Constitutional direction for handling situations where the president could not function and could not or would not step aside. Now, the vice president “and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” can notify legislative leaders of the president’s inability to fulfill the duties of the office and the vice president then begins acting as president. The president can resume office by notifying the legislative leaders that there is no inability. When the vice president (and the executive officials) disagree with the president about the president’s capacity and send dueling declarations to Congress, Congress decides the issue. Specifically, if 2/3 of members of Congress agree that the president is incapacitated, the vice president acts in the president’s stead, otherwise the president continues to function (and White House meetings are, no doubt, chilly).

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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