Celebrating the 50th of the 25th Amendment!

Fifty years ago today, Minnesota and Nevada ratified the proposed Twenty-fifth Amendment to the Constitution, providing the final support needed to make it part of our highest law. That Amendment was a significant accomplishment which created procedures to address some vexing problems regarding presidential continuity. And its enactment demonstrated how able and dedicated leadership can solve difficult problems, even those that had long resisted fixes.

Until 1967, the Constitution provided no means to fill a vice-presidential vacancy or to transfer power from a disabled president. Questions that Delaware’s John Dickinson asked at the Constitutional Convention (“What is the extent of the term ‘disability’ and who is to be the judge of it?”) went unanswered for 175+ years. The problem was compounded after President William Henry Harrison died in April, 1841 and Vice President John Tyler claimed that he was president, not simply vice president acting as president as the founders intended. Tyler’s position was repeated seven times from 1841 to 1963 whenever a deceased president was replaced by his vice president. The Constitution’s text treated the vice president’s status following a presidential inability the same as after a presidential death, removal or resignation. The Tyler Precedent inhibited vice presidents from exercising presidential responsibilities during presidential inabilities for fear of displacing the chief executive. So did the ideological, personal and constitutional distance between presidents and vice presidents for most of our history. No move was made to transfer power to Vice President Chester A. Arthur after President James Garfield was shot in 1881, even though the President was incapacitated during the last 80 days of his life. Similarly, Woodrow Wilson clung to power though incapacitated during much of the last 17 months of his presidency. First Lady Edith Bolling Wilson, not Vice President Thomas Marshall, essentially made executive decisions during this period. And presidential power remained with President Dwight D. Eisenhower during his three incapacities in the mid-1950s.

The Eisenhower disabilities amidst the Cold War and nuclear age prompted interest in addressing the problem of presidential inability. Eisenhower took important steps by entering into a letter agreement with Vice President Richard M. Nixon allowing either to initiate the temporary transfer of presidential powers and duties from Eisenhower to Nixon with Eisenhower retaining the right to reclaim them. Congress began considering constitutional amendments addressing presidential inability without reaching any consensus.

Following the assassination of President John F. Kennedy in November, 1963, Senator Birch Bayh, the newly-appointed chair of the Senate Subcommittee on Constitutional Amendments, proposed a constitutional amendment in December, 1963 which anticipated the eventual Amendment. So did principles suggested by a blue-ribbon American Bar Association group that included former Attorney General Herbert Brownell, future Supreme Court Justice Lewis Powell, iconic Harvard law professor Paul A. Freund, and John D. Feerick, a young New York lawyer, who had begun writing scholarly articles regarding presidential inability before the assassination.

The Amendment contains four sections. Section One adopted the Tyler Precedent following a presidential death, resignation or removal, but not after a presidential inability in which case the vice president simply acts as president. Section Two of the Amendment allowed the president to nominate a new vice president to fill a vice-presidential vacancy upon confirmation by each house of Congress. Section Three permitted the president to transfer presidential powers and duties to the vice president during a period of presidential inability and to reclaim them when the disability ends. Section four allowed the vice president and the majority of the Cabinet (or an alternative body should Congress create one) to transfer presidential powers and duties from the president during a presidential inability. The president can reclaim those powers upon a written declaration of his fitness to resume them unless the vice president and Cabinet contest his declaration in which case Congress decides the issue within a designated time.

Presidential succession and inability were not the sort of hot-button issues that attracted the engaged attention of many politicians. That was partly why longstanding problems persisted. Bayh was different. He pushed relentlessly and effectively for passage of the proposed amendment, involving colleagues on both sides of the aisle. Representatives Emanuel Celler and Richard Poff also played important roles. And Feerick’s scholarship informed legislative deliberations even while he worked with the ABA to achieve passage and ratification, the latter coming on February 10, 1967.

Three of the four sections of the Amendment have been utilized six times since its ratification. In October, 1973, Gerald R. Ford was nominated to fill a vice-presidential vacancy produced by the resignation of Spiro T. Agnew and confirmed less than two months later. In August, 1974, Ford succeeded to the presidency following Richard M. Nixon’s resignation. The following month, Ford nominated Nelson A. Rockefeller as vice president and Rockefeller was confirmed in December.

Two presidents have transferred presidential powers and duties to the vice president while they underwent surgery under general anesthesia on three occasions. In July, 1985, President Ronald Reagan transferred presidential powers to Vice President George H.W. Bush for eight hours while Reagan had a cancerous polyp removed. President George W. Bush briefly transferred powers to Vice President Dick Cheney in 2002 and 2007 while he underwent colonoscopies.

The early uses of the Amendment confirm its contributions to America’s system of assuring presidential continuity. The impeachment proceedings that forced Nixon’s resignation would have been complicated without the ability to install Republican Ford as vice president when Democratic Speaker of the House Carl Albert was otherwise next-in-line. Whereas the vice presidency was vacant for 21% of American history before the Twenty-fifth Amendment was ratified, since then it has been unoccupied for only 6 months or less than .1%, thereby diminishing the importance of the remainder of the line of succession where the solutions are less attractive. Section Three and Four encourage a transfer of power when a president is physically or mentally unable to perform by providing procedures, identifying decision-makers, and allowing the president to resume office upon the end of the incapacity.

The framers of the Twenty-fifth Amendment recognized other problems in America’s system for providing presidential continuity but deferred them to later legislatures after concluding that broadening their effort would prevent any progress. These problems include the following: the line of succession after the vice presidency currently runs through legislative leaders who might not belong to the president’s party; no provisions exist to declare a vice president disabled; the electoral system presents various vulnerable spots. Congress should address these and other gaps in the very near future.

That would be a fitting tribute to the great contributions of Bayh, Feerick and others that culminated fifty years ago with the ratification of the Twenty-fifth Amendment, and would continue their great work of improving our system of government.

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