The 25th Amendment: Succession of the Presidency

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Joint Resolution Proposing the Twenty-Fifth Amendment to the United States Constitution, 7/6/1965. (National Archives Identifier 1415077)

Today’s post comes from Christine Blackerby, archives specialist in the Center for Legislative Archives at the National Archives in Washington, DC. She is also co-curator of the exhibit Amending America,” which runs in the Lawrence F. O’Brien Gallery in the National Archives Building through September 4, 2017.

Today marks the 50th anniversary of the ratification of the 25th Amendment to the U.S. Constitution. The amendment established procedures for the succession of the Presidency in the event of a vacancy in the office of President or Vice President.

There have been 16 times, totaling 38 years, that the Vice Presidency has been vacant. This has been due to the death or resignation of the Vice President, or when the Vice President has assumed the Presidency after the death or resignation of the President.

Before passage of the 25th Amendment, succession was determined by legislation. Congress passed laws at various times establishing the President pro tempore of the Senate, the Speaker of the House, or the Secretary of State as third in line for the Presidency.

The subject of succession did not get much attention from the Founders at the Constitutional Convention in 1787. And what they said was ambiguous:

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.

U.S. Constitution ~ Article II, Section 1, clause 6

Article II, Section 1, did not clarify, in the event of a vacancy in the Presidency, whether it was only the “powers and duties” of the President that devolved onto the Vice President or if the office itself did, too.

This ambiguity became a real issue the first time a President died in office. In 1841 President William Henry Harrison died of pneumonia only four weeks after taking the oath of office.

When Congress convened the next month, they prepared the standard message used to inform the President that Congress was in session. But this time, there was uncertainty in Congress about how to address the official message. Vice President John Tyler had taken the Presidential oath of office, but was he actually the President?

In the House of Representatives, one member offered an amendment to the resolution that would strike out the word “President” and replace it with “Vice President now exercising the office of President.”

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Motion to amend the resolution to strike out “President” and insert “Vice President now exercising the office of President,” May 31, 1841. (National Archives Identifier 25466017)

The House voted this down, and Tyler served out the remainder of the term as President, rather than Acting President. Other Vice Presidents in the same situation followed his example. To remove any ambiguity, Section 1 of the 25th Amendment codified the Tyler precedent.

Several other incidents highlighted the dangers of unclear succession. President James Garfield was sometimes delirious or incoherent for 2 ½ months after he was shot in 1881, before he finally died. Vice President Chester Arthur could do nothing but watch, as there was no constitutional method for him to take power, despite Garfield’s clear inability to perform his official duties.

In 1919, President Woodrow Wilson suffered a stroke that severely affected his physical and mental health for the remainder of his term. However, he refused to resign, and Vice President Thomas Marshall refused to take over as Acting President.

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Lyndon Baines Johnson taking the Presidential Oath of Office aboard Air Force One, November 22, 1963. (National Archives Identifier 194235)

It was the assassination of President John Kennedy in 1963 that finally caused Congress to address this structural flaw in the Constitution. Vice President Lyndon Johnson became President, and the Vice Presidency was vacant once again. There were questions about Johnson’s health, as he had previously had a heart attack.

There was also concern about the two elderly congressional leaders who were next in line for the Presidency. It was the nuclear age in the Cold War, and there was widespread desire for a plan for who would be in charge of the nuclear button.

Debate in Congress began almost immediately on what would become the 25th Amendment. In 1965 Congress finally passed the amendment by the constitutionally required two-thirds vote of both houses. Two years later, on February 10, 1967, three-quarters of the states had ratified it to make it part of the U.S. Constitution.

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Letter from House Minority Leader Gerald R. Ford to President Nixon with recommendations for nomination to the Vice Presidency, October 11, 1973.(National Archives Identifier 26080952)

Only six years later, the succession clause of the 25th Amendment was triggered when Vice President Spiro Agnew resigned after being accused of tax evasion. Section 2 of the amendment states that the President can nominate a person for the vacancy. That person must then be confirmed by a majority vote of both houses.

President Richard Nixon sought input on the selection of a nominee from a wide array of advisers. House Minority Leader Gerald Ford sent a letter to Nixon listing his suggestions for a new Vice President.

Nixon, however, ignored Ford’s recommendations and instead chose Ford himself. Congress approved, and Ford took the oath of office two months later.

The following year the amendment was triggered again. President Nixon resigned amid the Watergate scandal, and Ford became President.

Under the 25th Amendment, Ford then nominated Nelson Rockefeller to be Vice President, and Congress again approved. For the remainder of the term, America’s top two political positions were occupied by men who had not been elected by the American people.

Sections 3 and 4 of the amendment address situations involving the incapacitation of the President, rather than death. The first time these provisions were considered for use was after the attempted assassination of President Ronald Reagan in 1981.

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Unsigned letter regarding the transfer of power per the 25th Amendment, to be used in the case of the President’s incapacitation as a result of the assassination attempt, March 31, 1981. (Ronald Reagan Presidential Library, National Archives)

Immediately after Reagan was shot outside a Washington hotel, the extent of his injuries wasn’t clear. As Reagan prepared for emergency surgery, his aides debated invoking Section 3 of the amendment, which calls for the Vice President to be Acting President until the President is able to resume his duties.

Aides drafted the paperwork for the transfer of power but some of them argued against invoking it. Reagan recovered quickly from the surgery, and he indicated that he could function as President while he healed under the care of his doctors.

The transfer never happened.

Fifty years after its ratification, questions linger about the effectiveness of the amendment’s processes, especially related to the disability provisions in Sections 3 and 4, which have not been tested in an emergency situation. But at least now, Americans know that there is a plan for the succession and that there is no need to wonder who is in power.

To celebrate its 50th anniversary, the original Joint Resolution Proposing the Twenty-Fifth Amendment to the United States Constitution is on display in The Public Vaults exhibit at the National Archives Museum in Washington, DC. 

This entry was posted in - Constitution, - Presidents, U.S. House, U.S. Senate and tagged , , , , , , , , , , , . Bookmark the permalink.

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