Amendment 25 — Presidential Inability And The 89th Congress Floor Debates

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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.

House and Senate floor debates on the joint resolutions proposing the Twenty-Fifth Amendment centered on the language that would become Section 4, which addresses the involuntary transfer of the President’s powers and duties to the Vice President during episodes of presidential inability. By contrast, Sections 1, 2, and 3 were not as controversial. Section 1 merely codifies the Tyler Precedent,[1](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn1amd25 " Upon President William Henry Harrison’s 1841 death, Vice President John Tyler established the historical precedent that the Vice President succeeds to the presidency automatically for the remainder of the President’s term. For more on the Tyler Precedent and historical succession practices that informed Section 1 of the Twenty-First Amendment, see “Presidential and Vice-Presidential Vacancies Before the Twenty-Fifth Amendment’s Ratification.” ") providing that if the President dies, resigns, or is removed from office as a result of impeachment proceedings, then the Vice President “shall become President.” [2](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn2amd25 " See U.S. Const. amend. XXV, § 1 (text as ratified). ") Section 2, which establishes the process for filling a vice-presidential vacancy,[3](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn3amd25 " See U.S. Const. amend. XXV, § 2 (text as ratified). ") was intended to ensure that the nation would “always possess a Vice President” who would be “compatible with the President,” could serve as President if called upon, and would likely continue the President’s policies.[4](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn4amd25 " See S. Rep. No. 89-66, at 13 (1965). Section 2 recognized that the vice presidency had become an important office during the twentieth century that should not remain vacant. See, e.g., 111 Cong. Rec. 7949 (1965) (statement of Rep. Cohelan); 110 Cong. Rec. 22987 (1964) (statement of Sen. Bayh). ") To promote accountability to the electorate, the Twenty-Fifth Amendment ’s framers required that Congress confirm any vice presidential nominee before the individual could take office.[5](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn5amd25 " See S. Rep. No. 89-66, at 14–15 (1965); 110 Cong. Rec. 22994 (statement of Sen. Bible). The House participates with the Senate in considering the nomination of a new Vice President because the vice presidency is an elected office rather than an appointed one. Id. The Senate rejected an amendment that would have required Congress to vote on a President’s nominee for a vice presidential vacancy “immediately.” 111 Cong. Rec. 3281–82 (1965) (rejecting substitute amendment of Sen. Bass). The Senate also rejected an amendment that would have reconvened the Electoral College to choose a Vice President in the event of a vacancy. Id. at 3272–74 (rejecting amendment of Sen. Thurmond). ")

Section 3 allows an incapacitated President—or a President that anticipates inability—to relinquish his constitutional responsibilities voluntarily to the Vice President, who serves as Acting President for the duration of the President’s inability.[6](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn6amd25 " U.S. Const. amend. XXV, § 3 (text as ratified); 111 Cong. Rec. 7941 (1965) (statement of Rep. Poff) (contending that Section 3 encompasses situations “in which the President recognizes his inability—or the imminence of his inability—and wishes voluntarily to vacate his office for a temporary period” ). ") During House floor debates, Representative Emanuel Celler of New York observed that Section 3 “removes the reluctance of both the President and Vice President to move when necessity so dictates. The President is assured of his return to office. The Vice President, as Acting President, will not face the charge that he is usurping the office of President.” [7](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn7amd25 " 111 Cong. Rec. 7938 (statement of Rep. Celler). ")

Section 4, which prompted the most congressional debate, allows the Vice President and a majority of the Cabinet—or, alternatively, the Vice President and a majority of another body that Congress designates by law—to initiate the transfer of an incapacitated President’s powers and duties to the Vice President.[8](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn8amd25 " U.S. Const. amend. XXV, § 4 (text as ratified). Consistent with Supreme Court dicta and the Amendment’s legislative history, this essay uses the term “Cabinet” to refer to the “principal officers of the executive departments” designated in 5 U.S.C. § 101. ") Section 4 also provides mechanisms for (1) the President to declare that he has recovered; (2) the Vice President and a majority of the Cabinet, or, alternatively, the Vice President and a majority of a congressionally established body, to challenge the President’s declaration; and (3) Congress to decide disputes between the President and relevant officials over the issue.[9](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn9amd25 " U.S. Const. amend. XXV, § 4 (text as ratified). ")

One significant debate over Section 4 was whether the Constitution should contain detailed mechanisms on presidential inability instead of authorizing Congress to address pertinent issues through legislation.[10](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn10amd25 " E.g., S. Rep. No. 89-66, at 17–18 (1965) (statement of Sen. Dirksen). ") Some Members of Congress argued that authorizing Congress to address presidential inability by legislation would preserve flexibility for future policymakers,[11](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn11amd25 " See id.; 111 Cong. Rec. 3257, 3272 (1965) (rejecting Dirksen amendment). ") while opponents of this approach argued that it would grant Congress too much power over the presidency.[12](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn12amd25 " 111 Cong. Rec. 3269 (1965) (statement of Sen. Ervin); id. at 7940 (statement of Rep. Poff). See also John D. Feerick, The Proposed Twenty-Fifth Amendment to the Constitution, 34 Fordham L. Rev. 173, 188 (1965) (citing congressional debates). ") Some Members of Congress also observed that Congress might fail to resolve uncertainty over presidential inability and succession by declining to adopt the necessary legislation.[13](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn13amd25 " See, e.g., 111 Cong. Rec. 3271 (1965) (statements of Sens. Bayh and Saltonstall). At least one Representative argued that Congress might change rules on presidential inability frequently, adding to uncertainty and instability in the law. See id. at 7940 (statement of Rep. Poff). ") Congress ultimately decided to retain Section 4’s detailed mechanisms for addressing presidential inability.[14](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn14amd25 " See U.S. Const. amend. XXV, § 4 (text as ratified). ")

The Twenty-Fifth Amendment ’s framers also addressed concerns that the Vice President, Cabinet, or Congress would abuse Section 4’s inability mechanisms for political purposes, thereby displacing an elected President and undermining the government’s stability.[15](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn15amd25 " H.R. Rep. No. 89-203, at 19–20 (1965) (statement of Rep. Hutchinson). For further discussion of such concerns, see 111 Cong. Rec. 7958 (1965) (statement of Rep. White). ") To address such concerns, the Amendment’s framers included various “checks and balances” and acountability mechanisms intended to preserve the “institutional integrity” of the executive branch and presidency.[16](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn16amd25 " Joel K. Goldstein, Taking From the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 Fordham L. Rev. 959, 987–93 (2010) (explaining how the Twenty-Fifth Amendment embodies the principles of “separation-of-powers,” “checks and balances,” “democratic pedigree,” and “accountable decisionmaking,” among others). ") For example, the framers (1) required both the Vice President and executive branch officials close to the President—all of whom could monitor the President’s condition and would presumably be loyal to him—to initiate presidential inability determinations unless Congress established a different body to act with the Vice President;[17](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn17amd25 " See H.R. Rep. No. 89-203, at 13 (1965); 111 Cong. Rec. 7941 (1965) (statement of Rep. Poff). ") (2) required Congress to weigh in on presidential inability, within 21 days of assembling, in the event of a dispute between the President and relevant officials; (3) required a two-thirds majority vote in both chambers of Congress to sustain a finding of presidential inability over the President’s objection;[18](https://www.law.cornell.edu/constitution-conan/amendment-25/presidential-inability-and-the-89th-congress-floor-debates#fn18amd25 " The Twenty-Fifth Amendment’s framers required a two-thirds vote of both Houses of Congress to prevent the President from resuming his powers and duties so that it would be more difficult to remove a President for inability than it would to impeach and remove him from office for misconduct. H.R. Rep. No. <a href="/supremecourt/text/89-203" aria-label="supreme court - No. 89-