What is the 25th Amendment and When Has It Been Invoked?

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President
Bush said Friday that he is scheduled to undergo a colonoscopy
– his third – on Saturday. Bush will transfer power
to Vice President Cheney for about an hour while he is sedated
for the screening test for colon cancer." ~ MSNBC, 6-28-02

Disability
Clause

The
25th Amendment provides two remedies when a president is disabled.
1. The president of his own volition may turn over the power of
his office to the vice president. 2. The vice president, with the
assent of a majority of the leading members of the cabinet, may
make himself acting president on a temporary basis.

The
disability clause of the amendment has never been formally invoked
until now. Wire Service reports indicate that White House Counsel
Al Gonzales has expressly indicated that the president plans to
invoke the amendment.

In
July 1985 President Ronald Reagan underwent an operation to remove
a cancerous tissue from his colon. In anticipation of his operation,
which required him to be anesthetized, President Reagan sent a letter
to the speaker of the House of Representatives and to the president
pro tem of the Senate notifying them that he was turning over the
powers of the presidency to Vice President George Herbert Walker
Bush: "I have determined and it is my intention and direction
that Vice President George Bush shall discharge powers and duties
in my stead, commencing with the administration of anesthesia to
me." This is the procedure outlined in the 25th Amendment,
but President Reagan expressly indicated that he was not invoking
the amendment. "I do not believe," he wrote in his letter
to the Congress, "that the drafters of this amendment intended
its application to situations such as the present one." Various
explanations have been offered for what one scholar, Thomas Cronin,
refers to as this "curious sentence." Cronin has suggested
Reagan "and his aides feared that Reagan might have further
illnesses and operations and that frequent invoking of this section
[of the 25th Amendment] might diminish Reagan’s leadership image."
But it is also possible that Reagan was attempting to avoid setting
a precedent that might bind his successors (or himself). Eight hours
after he gave up power he signed a second letter taking it back.

Controversy
Involving the Disability Clause

In
1981, after being shot by John Hinkley, President Reagan was rushed
to the hospital and nearly died from blood loss. The president did
not invoke the 25th Amendment, though his aides intensively debated
whether he should. In the White House, Secretary of State Alexander
Haig famously claimed that he "was in charge" pending
the return of Vice President Bush. In fact, in the event of a national
security emergency, the vice president and the secretary of defense
were "clearly entrusted by Reagan to act in his absence,"
according to the latest edition of Edward S. Corwin’s magisterial
book, The President.

In
1985 President Reagan again did not invoke the 25th Amendment, but
he did at least seem to honor the intent of the law by notifying
the leaders of Congress by letter that he was turning power over
to the vice president. That a president can turn over his power
without formally invoking the amendment is unclear and has never
been tested in court. Oddly, Vice President Bush was not immediately
informed about the letter giving him the power of the presidency.

Eight
hours after Mr. Reagan signed the letter he took back the power
of the presidency by signing a second letter given to him by White
House Chief of Staff Donald Regan. The president was still groggy
from the anesthesia and barely managed to scribble his name. General
John Hutton, the presidential physician, afterward told the New
York Times that the president signed the letter without his knowledge.
"I would have waited at least a day," Hutton said. "I
don’t know why his chief of staff insisted on him signing the letter
so quickly." (NYT, Dec. 4, 1996)

President
George Herbert Walker Bush fell seriously ill twice during his presidency.
On neither occasion did he invoke the 25th Amendment. But in 1991,
when he suffered from an irregular heart beat, he announced that
if he needed electric shock therapy he would temporarily turn power
over to Vice President Dan Quayle.

President
Clinton never fell seriously ill during his presidency.

Both
Presidents George Herbert Walker Bush and Clinton made arrangements
with their vice presidents in the event of illness. These contingency
plans were never invoked and remain secret.

In
1996 a panel of historians and former White House physicians issued
a formal report recommending urgent changes in the way presidential
power is transferred in the event of disability. These changes,
which the panel recommended should be put into law, included: (1)
a formal requirement that the president and vice president agree
on a transfer-of-power contingency plan prior to their inauguration;
(2)the president’s personal physician should make primary judgments
about the president’s health; (3) the White House physician, who
by tradition was a member of the White House Military Office, should
be given a formal title outside the chain of military command (for
example: assistant to the president); (4) the judgment of the president’s
physical abilities should be determined strictly on the basis of
standard medical tests, and (5) presidents should accurately disclose
their medical condition, balancing their need for privacy against
the public’s need for information.

Twenty-Fifth
Amendment: Text

Amendment
Text | Annotations

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 principle 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.

Background
to the 25th Amendment

Source:
findlaw.com

"The
Twenty-fifth Amendment was an effort to resolve some of the continuing
issues revolving about the office of the President; that is, what
happens upon the death, removal, or resignation of the President
and what is the course to follow if for some reason the President
becomes disabled to such a degree that he cannot fulfill his responsibilities?
The practice had been well established that the Vice President became
President upon the death of the President, as had happened eight
times in our history. Presumably, the Vice President would become
President upon the removal of the President from office. Whether
the Vice President would become acting President when the President
became unable to carry on and whether the President could resume
his office upon his recovering his ability were two questions that
had divided scholars and experts. Also, seven Vice Presidents had
died in office and one had resigned, so that for some twenty per
cent of United States history there had been no Vice President to
step up. But the seemingly most insoluble problem was that of presidential
inability – Garfield lying in a coma for eighty days before succumbing
to the effects of an assassin’s bullet, Wilson an invalid for the
last eighteen months of his term, the result of a stroke – with its
unanswered questions: who was to determine the existence of an inability,
how was the matter to be handled if the President sought to continue,
in what manner should the Vice President act, would he be acting
President or President, what was to happen if the President recovered.
Congress finally proposed this Amendment to the States in the aftermath
of President Kennedy’s assassination, with the Vice Presidency vacant
and a President who had previously had a heart attack.

"This
Amendment saw multiple use during the 1970s and resulted for the
first time in our history in the accession to the Presidency and
Vice-Presidency of two men who had not faced the voters in a national
election. First, Vice President Spiro Agnew resigned on October
10, 1973, and President Nixon nominated Gerald R. Ford of Michigan
to succeed him, following the procedures of Sec. 2 of the Amendment
for the first time. Hearings were held upon the nomination by the
Senate Rules Committee and the House Judiciary Committee, both Houses
thereafter confirmed the nomination, and the new Vice President
took the oath of office December 6, 1973. Second, President Richard
M. Nixon resigned his office August 9, 1974, and Vice President
Ford immediately succeeded to the office and took the presidential
oath of office at noon of the same day. Third, again following Sec.
2 of the Amendment, President Ford nominated Nelson A. Rockefeller
of New York to be Vice President; on August 20, 1974, hearings were
held in both Houses, confirmation voted and Mr. Rockefeller took
the oath of office December 19, 1974."

August
16, 2005

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