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.)
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.