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

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