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TEXT OF AMENDMENT
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 has 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 has 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.
In outlining the duties and functions of the President of the United States, the Framers of the Constitution included provisions regarding the continuity of the Executive in cases of death, resignation, inability to perform, or removal from office. Article II, Section 1, Clause 5 reads:
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.
In several respects, this provision of the Constitution is unclear, and eventually it presented a number of questions insufficiently answered by the document. For example, when President William Henry Harrison died in 1841, Vice President John Tyler was left unsure whether he should serve as an "acting" or "official" President of the United States. Although Vice President Tyler did ulti
mately take the oath of office as President, the decision to do so by no means met with unanimous approval. The controversy that ensued was, however, finally quieted when both Houses of Congress voted to recognize Tyler as the official President of the United States. 1
The action taken by Vice President Tyler to succeed to the Presidency, rather than merely serve as "acting" President, established the precedent followed by six future Vice Presidents faced with similar circumstances. Millard Fillmore, Andrew Johnson, Chester Arthur, Theodore Roosevelt, Calvin Coolidge, Harry Truman, and Lyndon Johnson-each of whom became President of the United States through succession.
Another uncertainty arose with regard to presidential succession in cases when a President was unable to "discharge the Powers and Duties" of his office. Again, the Constitution provided no clear answer to the problem. In three instances in American history the President was considered unable to perform his duties. In all three cases, largely because of uncertainty over correct procedure, the Vice President did not assume the incapacitated President's responsibilities.
The first occasion arose in 1881 when President James Garfield fell victim to an assassin's bullet. President Garfield lingered for nearly 80 days, during which he was able to perform only one official act-the signing of an extradition paper. Then in 1919, President Woodrow Wilson suffered a severe stroke, leaving him largely disabled at a time when the United States' position in the League of Nations was indefinite. Other major matters of foreign policy, such as the Shantung Settlement, were left unresolved. In addition, the British Ambassador spent 4 months in Washington without being received by President Wilson, and 28 acts of Congress became law without his signature.2 Finally, at least three times during his Administration, President Dwight D. Eisenhower was considered unable to perform as President adequately because of poor health. President Eisenhower himself expressed concern over the ambiguity in the "succession clause" of Article II. Nevertheless, he chose to solve the problem by means of an informal working agreement with Vice President Richard Nixon, rather than an amendment to the Constitution.3
In the Senate Joint Resolution that became the Twenty-fifth Amendment, S.J. Res. 1 (89th Cong.), the ambiguities in the "seccession clause" were summarized, particularly with regard to cases when the President is unable to perform the duties of his office:
The historical review of the interpretation of article II, section 1, clause 5, suggests the difficulties which it has already presented. The language of the clause is unclear, its application uncertain. The clause couples the contingencies of a permanent nature such as death, resignation, or removal from office, with inability, a contingency which may be temporary. It does not clearly commit the determination of inability to any individual or group, nor does it define inability so that existence of such a status may be open and notorious. It leaves uncertain the capacity in which the Vice President acts during a period of inability of the President. It fails to define the period during which the Vice President serves. It does not specify that a
recovered President may regain the perogatives of his office if he has relinquished them. It fails to provide any mechanism for determining whether a President has in fact recovered from his inability, nor does it indicate how a President, who sought to recover his perogatives while still disabled, might be prevented from doing so.
The assassination of President John F. Kennedy and the succession of Vice President Johnson in 1963 reminded the Nation of another "gap" in the "succession clause"-the lack of a mechanism for choosing a Vice President when the previous Vice President succeeds to the presidency. Sixteen times the United States had been without a Vice President, totaling 37 years of our Nation's history. The Framers foresaw the need to have a qualified Vice President in office should the President die, but they neglected to establish a procedure whereby a vice presidential vacancy could in turn be filled.
Soon after the death of President Kennedy, over two dozen resolutions were introduced to amend Article II, Section 1, Clause 5 of the Constitution. Among these was S.J. Res. 139 (88th Cong.), introduced by Senator Birch E. Bayh of Indiana. On September 29, 1964, the Senate unanimously passed Bayh's resolution 65 to 0, 35 not voting; however, the House failed to take action on it.
In the 89th Congress, Seantor Bayh introduced a resolution, S.J. Res. 1, similar to the one introduced in the previous Congress. An identical proposal, H.J. Res. 1, was introduced in the House of Representatives. Recognized as a nonpartisan resolution, the debate in Congress centered primarily on the means by which the ambiguities in the Constitution could best be clarified. Three ideas dominated the debate: many felt the Constitution could be clarified with statutory legislation; others argued that a broad amendment to the Constitution was needed to provide the basis for statutory legislation; finally, Senator Bayh led a group of Senators advocating a specifically worded constitutional amendment.
As introduced, the House and Senate resolutions were designed to make it clear that when the Office of President becomes vacant, because of death, resignation, or removal from office, the Vice President does become the "official" President. In addition, the resolutions provided a means of filling a vacancy in the Office of Vice President and clarified that the Vice President would act as President when the latter was unable to fulfill his duties. They also outlined a mechanism for determining when the President was incapable of acting in his office.
Sections 1 and 2 of the proposed amendment were eventually ratified in the same language as they were introduced. Sections 3 and 4, dealing with presidential disability, including the mechanisms for declaring the President unable to act and for the assumption of the role of President by the Vice President, were modified by the Senate and House Judiciary Committees, on the floor of both Houses, and by the Conference.
The third section, as initially introduced, read:
If the President declares in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as acting President.
Both the Senate and House Judiciary Committees recommended that the section specify who should be notified of the President's written declaration. The House proposal was the one eventually adopted. In addition, the House Judiciary Committee suggested adding a phrase stating that in cases when the President voluntarily relinquished his authority in writing, he could also resume his authority by a similar written notice, without the concurrence of another person. In conference, the words, "to them," referring to the Speaker of the House and President pro-tempore of the Senate, were added to clarify that presidential notices of relinquishment and resumption of authority were both to be given to these officers of the House and Senate.
Section 4 of the Twenty-fourth Amendment resulted from a combination of Sections 4 and 5 of the resolutions. As introduced, these sections read:
SECTION 4. If the President does not so declare, and the Vice President with the written concurrence of a majority of the heads of executive departments or such other body as Congress may by law provide, transmits to the Congress his 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.
SECTION 5. Whenever the President transmits to Congress his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President, with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits within two days to the Congress his written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress will immediately decide the issue. If the Congress determines by two-thirds vote of both Houses that the President is unable to continue to discharge the powers and duties of the 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.5
The Senate Judiciary Committee offered an amendment to Sections 4 and 5 that was similar to the House recommendations on Section 3, requiring that the "written declarations" in both sections be transmitted to the Speaker and the President pro-tempore. In addition, Senator Roman L. Hruska of Nebraska offered an amendment allowing 7 days, rather than 2, for the Vice President and a majority of the Cabinet to take issue with a presidential claim of regained ability to act in his office. Both these amendments were accepted by the Senate, while a number of other amendments were rejected. The amendments rejected included giving Congress power to estabish by law a determination of presidential disability and, if necessary, a determination of other circumstances of vacancy or disability. Another amendment would have required the Electoral College to convene for purposes of selecting a Vice President in case of a vacancy in that office. On February 19, 1965, S.J. Res. 1 passed the Senate, as amended, by a vote of 60 to 12, 28 not voting.
Like its counterpart in the Senate, the House Judiciary Committee recommended that, in every instance involving a "written declaration" in Sections 3, 4, and 5 of the H.J. Res. 1, the notice be
transmitted to the Speaker and President pro-tempore of the Senate. Second, the committee proposed to combine Sections 4 and 5 in order to emphasize that challenges to a President's ability were not to extend to voluntary declarations by the President. The committee also recommended that if Congress is not in session when a dispute over presidential ability arises, it should immediately assemble to resolve the matter. Finally, it was proposed that a 10-day limit be established for congressional concurrence with the Vice President and cabinet majority in cases of dispute.9
During floor debate in the House, one more amendment was added to H.J. Res. 1. It modified an earlier Committee amendment by requiring that Congress assemble within 48 hours after notice has been given that the President's ability to perform was in question. Upon the conclusion of debate, the House easily passed the . Resolution on April 13, 1965, 386 to 29, 36 not voting.
Once the resolutions passed the House and the Senate, they were sent to a conference committee to resolve the differences in the two documents. In conference, two compromises were agreed upon. The first limited to 4 days the time allowed for challenges to a President's claim of regained ability to perform; the second allowed Congress 21 days to reach a decision in such cases. Other than these two compromises and some minor changes in phraseology, the conference generally accepted the House version of the proposal.11 The conference report was then adopted by the House on June 30 and by the Senate on July 6, 1985.12
On July 7, 1965, the proposed Twenty-fifth Amendment was sent to the States for ratification. 13 Within 2 years, nearly all 50 States had ratified the Amendment, easily surpassing the requisite number of 38 States. The ratification dates of the several States appear below: