Amendment 25 — Overview Of Twenty Fifth Amendment Presidential Vacancy And Disability

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Twenty-Fifth 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 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.

To ensure that the United States will always possess a functioning President and Vice President, the Twenty-Fifth Amendment provides for the prompt, orderly, and democratic transfer of executive power.[1](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn1amd25 " See, e.g., 111 Cong. Rec. 3251 (1965) (statement of Sen. Bayh); id. at 3275 (statement of Sen. McClellan); id. at 7942 (statement of Rep. McCulloch); id. at 7959 (statement of Rep. Schmidhauser); 109 Cong. Rec. 24420 (1963) (statement of Sen. Bayh). ") The Amendment clarifies and supplements the Presidential Succession Clause[2](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn2amd25 " See U.S. Const. art. II, § 1, cl. 6 ( “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.” ); see also . Congress has exercised its authority under Article II’s Presidential Succession Clause to establish a line of succession to the presidency in the event that both the President and Vice President are unable to discharge the powers and duties of the presidency. See Presidential Succession Act of 1947, 3 U.S.C. § 19. ") in Article II of the Constitution by: (1) confirming that the Vice President becomes President when the latter dies, resigns, or is removed from office as a result of impeachment proceedings; (2) requiring the President to fill a vice presidential vacancy with Congress’s approval; and (3) establishing mechanisms for transferring an incapacitated President’s powers and duties to the Vice President.[3](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn3amd25 " U.S. Const. amend. XXV. The introductory text of the joint resolution proposing the Twenty-Fifth Amendment required three-fourths of the state legislatures to ratify the Amendment within seven years of its submission to the states in order for it to become part of the Constitution. S.J. Res. 1, 89th Cong., 1st Sess., 79 Stat. 1327, 1327 (1965). The proposed Twenty-Fifth Amendment was submitted to the states for potential ratification on July 6, 1965. The Amendment attained the three-fourths majority of the states necessary for ratification on February 10, 1967. See . ") The Supreme Court has not definitively interpreted the Twenty-Fifth Amendment ,[4](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn4amd25 " See Clinton v. Jones, 520 U.S. 681, 698 (1997) (stating, in nonbinding dicta, that the Twenty-Fifth Amendment’s drafters wanted to “ensure continuity in the performance of the powers and duties of the [presidency]” ) (citation omitted); Freytag v. Comm’r, 501 U.S. 868, 887 & n.4 (1991) (stating in dicta that the term “principal officers of the executive departments” in Section 4 of the Twenty-Fifth Amendment refers to the heads of the Cabinet departments listed in 5 U.S.C. § 101). ") and legal scholars continue to debate its provisions addressing presidential inability.[5](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn5amd25 " See, e.g., Second Fordham Univ. Sch. of Law Clinic on Presidential Succession, Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System, 86 Fordham L. Rev. 917 (2017). This group of essays uses the terms “disability,” “inability” and “incapacity” interchangeably. For more on debates over the meaning of “inability” in the Twenty-Fifth Amendment, see id. ")

Section 1 of the Twenty-Fifth Amendment provides that if the President dies, resigns, or is removed from office as a result of impeachment proceedings, then the Vice President “shall become President.” [6](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn6amd25 " U.S. Const. amend. XXV, § 1. In a 1985 opinion, the Department of Justice’s Office of Legal Counsel advised that the Vice President would immediately relinquish “all duties and responsibilities as Vice President” when he succeeds to the presidency. See Operation of the Twenty-Fifth Amendment Respecting Presidential Succession, 9 Op. O.L.C. 65, 67 (1985) (recommending that the Vice President promptly take the oath of office upon succeeding to the presidency). ") Section 1 was intended to clarify, consistent with long-established historical practice, that the Vice President immediately succeeds to the presidency in such circumstances instead of serving as the “Acting President.” [7](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn7amd25 " For more on the historical succession practices that informed Section 1 of the Twenty-Fifth Amendment, see . ") In 1974, Section 1 resulted in Vice President Gerald Ford’s succession to the presidency when President Richard Nixon resigned under threat of impeachment for his role in the Watergate scandal.[8](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn8amd25 " For more on Watergate and Nixon’s resignation, see . ")

Section 2 of the Twenty-Fifth Amendment provides for filling a vice-presidential vacancy that occurs during a President’s term of office.[9](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn9amd25 " U.S. Const. amend. XXV, § 2. The original Presidential Succession Clause did not address vice presidential vacancies. See U.S. Const. art. II, § 1, cl. 6. ") From the beginning of President George Washington’s first term in 1789 to the Twenty-Fifth Amendment ’s ratification in 1967, the vice presidency was vacant for more than 37 years cumulatively because of the officeholder’s death, resignation, or succession to the presidency.[10](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn10amd25 " See

About the Vice President: Vice Presidents of the United States

, U.S. Senate, https://www.senate.gov/about/officers-staff/vice-president/vice-presidents.htm . In the event of a vacancy, Section 2 requires the President to nominate a new Vice President to take office for the remainder of the President’s term after confirmation by a majority vote in each chamber of Congress.[11](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn11amd25 " U.S. Const. amend. XXV, § 2. See also 111 Cong. Rec. 7944, 7946 (1965) (statement of Rep. Celler) (suggesting that Section 2 requires a separate vote in each chamber of Congress). ") Section 2 of the Twenty-Fifth Amendment was invoked twice during the 1970s to fill vice- presidential vacancies resulting from Vice President Spiro Agnew’s and President Nixon’s resignations.[12](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn12amd25 " President Nixon’s resignation occasioned the use of Section 2 because Vice President Gerald Ford succeeded Nixon, resulting in a vice presidential vacancy. See . ")

Sections 3 and 4 of the Twenty-Fifth Amendment address circumstances in which the President is unable to discharge his powers and responsibilities under the Constitution.[13](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn13amd25 " U.S. Const. amend. XXV, §§ 3–4. ") Prior to the Amendment’s ratification, at least two Vice Presidents declined to assume an incapacitated President’s powers and duties because of legal uncertainty as to whether the President could reclaim them upon recovery.[14](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn14amd25 " See . ") Section 3 allows an incapacitated President—or a President who anticipates becoming incapacitated[15](https://www.law.cornell.edu/constitution-conan/amendment-25/overview-of-twenty-fifth-amendment-presidential-vacancy-and-disability#fn15amd25 " A few Presidents