Constitutional Topic: Presidential Disability
The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns Presidential Disability. Presidential
Disability is mentioned in the 25th Amendment.
The Topic Page for the Presidential Line of
Succession is also of interest.
Air Force One. 24. The West Wing. What do all of
these Hollywood creations have in common? They are or were all hugely popular
in their time, to be sure. But more to the point of this site, they each
contained in their story lines the invocation of an interesting and thoroughly
modern part of our Constitution, the 25th
Amendment. (Note: some other relevant films include Deterrence,
The Contender, The Enemy Within, and By Dawn’s Early
Light.)
History
The 25th Amendment concerns presidential disability, or what to do with the
presidency if the President cannot perform the duties of the president. It is
an issue that the Framers only gave the most cursory of thought to, relatively
speaking. They were concerned about continuity of power, and provided for a
Vice President to replace the President, should anything ever happen. As time
went on, Vice Presidents did eventually replace Presidents as they died in
office. For reference, a list of Presidents who died in office follows:
- 9th President William Henry Harrison, died April 4, 1841
- 12th President Zachary Taylor, died July 9, 1850
- 16th President Abraham Lincoln, died April 15, 1865
- 20th President James Garfield, died September 19, 1881
- 25th President William McKinley, died September 14, 1901
- 29th President Warren G. Harding, died August 2, 1923
- 32nd President Franklin Delano Roosevelt, died April 12, 1945
- 35th President John F. Kennedy, died November 22, 1963
In each of the above cases, a Vice President eventually took over the duties
of the President as described in the Constitution. The assassination of
President Kennedy in 1963, however, made many people stop and think. Kennedy
had been shot in the head, among other places. There was a very real chance
that he could have lived for some time, yet have been in a coma, or he could
have lived and been in a diminished mental state. What to have done then? The
Constitution only allowed for the Vice President to assume the presidency if the
President died, resigned, or was impeached. A president in a coma could hardly
resign, and would there be grounds for impeachment?
The question was actually far from a new one. Medical science, though, had
advanced to a place where such questions could be asked. Harrison died of
pneumonia a month after taking office. 100 years later, he might have lived.
Taylor died of cholera morbus, or acute indigestion, which surely would not have
been fatal today. Lincoln, of course, was shot in the head, but it was over
eight hours later that he died.
The first real issue with presidential disability arose with Garfield. Shot
by an assassin’s bullet, he lay in sick bed for 11 weeks. One modern report
said “The President could do no work, though he went through a few motions. The
Government drifted.” The Vice President, Chester Arthur, had been on the outs
with President and was not well-received by the Cabinet before Garfield’s death.
But this first chance to refine the Constitution was not taken up.
McKinley was shot just after the beginning of his second term, and died eight
days afterwards, the victim of gangrene. Harding’s death was relatively quick –
after a grueling schedule of speeches, he was ordered to rest by his physicians;
later, he collapsed and died four days later. Finally, Roosevelt died while
away for rest in Warm Springs, Georgia. His passing was also relatively
quick.
However, the experience of Garfield and the new fears after Kennedy forced
the Congress to take a hard look at the presidency. The United States had
emerged as a major power; could the de facto leader of the free world
be leaderless? Could the United States afford to have any substantial time
without a clear picture of who the President was?
The 25th Amendment was the answer to that question – the United States could
not afford to have any doubts about who was at the helm. The 25th
ensures that the entire nation and the entire world is clear who the leader is
even in a time of uncertainty.
What does the 25th say?
The 25th Amendment basically lays out a plan for the Vice President to assume
power, taking it from the President when such action is required. Nothing is
automatic except what was before: upon death, resignation, or impeachment, the
Vice President is the President. But in a case of disability short of death,
the wheels can be set in motion under the 25th Amendment.
Step 1 – declaration of disability
To remove a President from power, the Vice President and a majority of the
department secretaries must send a message to the Speaker of the House and the
President Pro Tempore of the Senate stating that the President is unable to
fulfill his duties as President. Note that the majority is of “the executive
departments” and not of “the Cabinet.” The
Cabinet is often used as a shorthand term for the executive departments, but
the Cabinet actually consists of other persons, such as the White House Chief of
Staff and some agency heads. These people are not a part of the 25th Amendment
process.
Once this message is signed and sent, the Vice President immediately
becomes Acting President.
Step 2 – declaration of ability
If the President is not physically disabled, such as being in a coma, he
may disagree with the actions of his Vice President and department secretaries.
If he does disagree and is able, he can send his own message to the Speaker and
President Pro Tem, stating that his is able to perform as President. In this
case, the President is immediately restored to full power as President.
Step 3 – redeclaration of disability
Once the President disputes the original declaration, a clock starts ticking.
If within four days of the President’s objection the Vice President and the
department secretaries again declare the President disabled to the Speaker and
the President Pro Tem, the decision of disability falls to the Congress.
Within 48 hours, the Congress must convene if it is not already in session.
Another clock then starts ticking. Twenty-one days after the Vice President’s
second declaration, the Congress must decide if the President is disabled. If
the Congress so decides, by a required two-thirds majority of each house, then
the President must step aside and the Vice President becomes Acting President.
While the Congress decides, the Vice President holds the position of Acting
President. If the Congress agrees that there is a disability, then the Vice
President continues as Acting President. If there is no two-thirds majority
within 21 days, the President resumes his position.
Step 4 – resumption of power
Though the 25th Amendment does not address the issue directly, it never
actually allows for the removal of the President – only for the Vice President
to become Acting President. There could come to pass a time when the President
is able to resume his duties. Presumably, if the Vice President agrees at any
time that the President is able, he can give up his powers as Acting President.
It also seems clear that if the Vice President were to lose the support of more
than half the department secretaries, the President would also resume his
duties.
Caveat – self-removal
One aspect of the 25th that we skipped over is this: the 25th provides for
the President to remove himself from his role, placing the Vice President
directly into the role of Acting President. In this case, the President informs
the Speaker and President Pro Tem of his disability and upon doing so, the Vice
President becomes Acting President. By simple declaration of ability, reversing
the prior message, the President can resume power at any time.
This part of the 25th Amendment has actually been invoked, with little
fanfare. The second President George Bush turned over power to Vice President
Richard Cheney in June 2002 while he went under general anesthesia for a
colonoscopy. Previously, President Ronald Reagan delegated his powers to Vice
President George Bush when he also underwent surgery, but in the case, Reagan
expressly denied invocation of the 25th Amendment. The first President Bush did
fall ill a few times during his term, but he never invoked the 25th. In 1996, a
panel of historians urged that presidents take greater care when there was to be
planned disability such as general anesthesia. Presidents Clinton and Bush both
had made formal but secret arrangements for transfer of power in such
circumstances, and Bush’s 2002 declaration was the first time the
recommendations were put into effect.
Appendix – other instances of succession
All of the above-mentioned cases came about because of presidential death.
In one instance, that of President Richard Nixon, the Vice President became
President because of a resignation. Gerald Ford is, to date, the only Vice
President to replace a President for a reason other than death.
Ford himself came to the Vice Presidency because of the 25th Amendment.
Nixon’s first Vice President, Spiro Agnew, resigned in the wake of a tax
scandal, and Nixon replaced him with Ford under the second section of the 25th
Amendment. Prior to the ratification of the 25th, there was no provision for
the replacement of a Vice President. When a Vice President replaced a
President, then, the office of Vice President remained open until the next
election. Ford invoked the second section of the 25th Amendment himself to
nominate his Vice President, Nelson Rockefeller.