The 25th Amendment has been in the news a lot lately. But what led to its establishment in the first place? Let’s explore each section of this oft-discussed amendment and what led us there.
SECTION 1: “IN CASE OF THE REMOVAL OF THE PRESIDENT FROM OFFICE OR OF HIS DEATH OR RESIGNATION, THE VICE PRESIDENT SHALL BECOME PRESIDENT”
First, a question: How many presidents have there been? Some say 45, others will remember Grover Cleveland’s nonconsecutive terms and say 44. Less well known is that there was a very serious question following William Henry Harrison’s death in 1841—was John Tyler now president? The Constitution specifies that the duties of the presidency shall “devolve on the Vice President,” but does not specify that the actual title (and, among other things, the salary increase) goes to the VP. As the Senate was debating the issue after Harrison’s death, Senator Tappan of Ohio made the analogy that “If a colonel was shot in battle, the next officer in rank took command of the regiment, but he did not thereby become a colonel.”
Another senator, referring to Tyler, attempted to strike out the word “President” in a procedural document and replace it with “the Vice President, on whom, by the death of the late President, the powers and duties of the office of President have devolved.” The measure was struck down 38-8. Tyler would ultimately fully assert that he was the president in duties as well as title, which created a precedent that lasted for more than 120 years. But it was just precedent, and some later presidents in similar situations (especially Millard Fillmore) were still labeled “Acting President” until the 25th Amendment finally specified “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”
In 1881 James Garfield was shot and lay dying for 80 days. People everywhere wondered how the government would continue to function.
The problem was that there was no easy answer. In 1792 Congress had passed the Presidential Succession Act, which held the line of succession as the vice president, the president pro tempore of the Senate, and then the speaker of the house. And that was it. However, due to the way the 19th century government worked, the offices of both the president pro tempore and the speaker of the house were vacant when Garfield was shot. If his vice president, Chester Arthur, was also assassinated, there was worry that the government would descend into chaos. The Presidential Succession Act had the foresight to declare that if both the offices of president and vice president were vacant there would (depending on certain factors) be a special election declared by the secretary of state, although no one knew who would be president until then. Because Arthur wasn’t assassinated, that stayed in the realm of theory—a theory that was revisited by the next president.
Less than nine months into Cleveland’s first term, his vice president Thomas Hendricks died and, again, both the president pro tempore and speaker’s offices were vacant. There was such concern about what would happen if Cleveland died that he didn’t even attend his VP’s funeral. Congress convened without a vice president, speaker, or president pro tempore—again. This was a problem, especially since the president pro tempore wasn’t chosen based on ability to be chief executive, and at the time only one had ever even been a candidate for president. The office of secretary of state however had substantial executive branch experience and had multiple future presidents in its history. In 1886 the line of succession after the vice president was changed to remove Congress entirely and go down the line of the Cabinet, starting at the secretary of state and ending at the secretary of the interior.
In 1947 Truman would argue that the succession shouldn’t immediately go to an unelected official, and pushed for the line of succession we currently have—with a few modifications—where it goes to the VP, the Speaker, the President pro tempore, and finally the Cabinet. This threw up its own set of worries after Kennedy was assassinated. The new president, Lyndon Johnson, had a heart attack in 1955 and there were concerns about his health. These concerns were not assuaged by the speaker of the house being in his 70s and the president pro tempore being in his 80s. Alongside lingering concerns about health issues during Eisenhower’s presidency, congress decided that the line of succession needed to be more robust than it was. As Senator Bayh, one of the key forces behind the Amendment, said, “The accelerated pace of international affairs, plus the overwhelming problems of modern military security, make it almost imperative that we change our system to provide for not only a President but a Vice President at all times … [the Vice President] must, in fact, be something of an ‘assistant President'” who can keep track of the national and international scene and understand what’s going on with the executive branch. Johnson himself came on board, saying in his 1965 State of the Union “I will propose laws to insure the necessary continuity of leadership should the President become disabled or die.”
As part of the 25th Amendment, the president was given the power to fill a vacant office of the vice president, but a method still needed to be picked. One proposal was to have two VPs on the ticket, one a Legislative VP and the other an Executive VP. This proposal went nowhere. Ultimately they decided on the president choosing a candidate followed by a vote in congress, a compromise that then-former vice president Richard Nixon argued against, saying “The Congress 20 percent of the time during the history of our country has been under the control of a party other than that of the President” and he worried about how such compromises would work. (For the record, Nixon wanted the Electoral College to pick the new VP.)
SECTIONS 3 AND 4: “WHENEVER THE PRESIDENT TRANSMITS … HIS WRITTEN DECLARATION THAT HE IS UNABLE TO DISCHARGE THE POWERS AND DUTIES OF OFFICE … SUCH POWERS AND DUTIES SHALL BE DISCHARGED BY THE VICE PRESIDENT AS ACTING PRESIDENT” AND “WHENEVER THE VICE PRESIDENT AND A MAJORITY OF EITHER THE PRINCIPAL OFFICERS OF THE EXECUTIVE DEPARTMENTS TRANSMIT … 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”
Dwight D. Eisenhower suffered multiple health scares during his presidency. During one of them, he realized that the circumstances for replacing a president with the vice president permanently were clear, but what if the president was only temporarily incapacitated?
The first time America was faced with this issue was again with Garfield. For the 80 days that he was president but unable to serve as such, there was confusion about what Arthur should do. If Arthur became acting president, would the Tyler Precedent mean that if Garfield recovered he’d be unable to reclaim the presidency? Arthur was concerned this was the case, and he would be viewed as having effectively staged a coup (not helped by Garfield’s assassin having said “Arthur is President now”). Anyway, who would make the decision that Garfield was incapacitated and—more importantly—fully recovered?
Arthur chose not to assume presidential responsibilities [PDF] and Garfield did die, so severe constitutional questions were avoided, but later leaders would recognize that hope was not a valid plan.
After his 1955 heart attack, Eisenhower instructed Attorney General Herbert Brownell Jr. to explore a Constitutional amendment that would allow the vice president to be acting president until the president was able to say that they could resume the task. In the case of a president deciding that they were able to reclaim the presidency despite not really being able to, Brownell initially proposed impeachment. Eventually, the 25th amendment specified that if the vice president and cabinet disagreed with the president, the issue would go to congress.
Since being ratified 50 years ago, the 25th Amendment has been invoked several times. George W. Bush invoked section 3 twice while being sedated during colonoscopies, both times for a couple of hours. (Fearful of setting precedent, Ronald Reagan deliberately didn’t invoke section 3 during a surgery in 1985, but the requirements in the amendment were followed.)
Most famous was its role in the Nixon and Ford administrations. In 1973, Nixon’s vice president Spiro Agnew resigned, meaning Nixon found himself in the precise situation he worried about a decade earlier with the Democrats in charge of both the House and the Senate. Nixon would be forced to choose Gerald Ford because, as he would later write, “Ford’s confirmability gave him an edge which the others could not match and was the decisive factor in my final decision.”
Eventually Nixon himself resigned, making Ford the new president who himself had to pick a new vice president, in this case Nelson Rockefeller. But not everyone was happy with an appointed president and vice president. Senator John Pastore wrote in the Los Angeles Times that “[The 25th Amendment] has provided us with a president who has not been elected by the people and who will serve for nearly two-and-a-half years … we can no longer afford the luxury of telling ourselves that it is inconceivable that Rockefeller (who would be the appointee of an appointee) would ever be in a position to himself nominate a Vice President.”
To avoid this, Pastore proposed a new constitutional amendment that would modify the 25th. He suggested that if a vice president was appointed under the 25th Amendment and ascended to the presidency under the amendment with more than 12 months to go before the next election, a special election would be called. He also proposed ending the practice of such a president being able to choose a replacement VP. The proposal never went anywhere, and the 25th Amendment, love it or hate it, continues to dominate headlines today.