The Presidential Succession Amendment—Section 3

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.

—John D. Feerick

Introduction

The Twenty-Fifth Amendment addresses vacancies and succession with regard to the presidency and vice presidency. Section 1 provides that if the President is removed, dies, or resigns, the “Vice President shall become President.” Section 2 provides a process by which a vice presidential vacancy can be filled. (See Essay No. 212.) Section 3, the subject of this essay, establishes a mechanism by which the President can temporarily declare in writing his own incapacity. During the President’s inability, the Vice President would serve as “Acting President.” Section 4 empowers the Vice President and Cabinet to declare that the President is unable to discharge his powers and duties. (See Essay No. 214.)

Presidential Inability Before the Twenty-Fifth Amendment

Article II, Section 1, Clause 6 provides that “[i]n 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. . . .” The Constitution does not define “Inability.” Before the Twenty-Fifth Amendment, several Presidents suffered severe incapacities. In 1881, Vice President Chester A. Arthur resisted succession after President James A. Garfield became incapacitated.¹ President Woodrow Wilson suffered a debilitating stroke, but Vice President Thomas R. Marshall did not displace him or want to do so. The Constitution did not provide a mechanism for the President to hand off his powers, at least temporarily, during an incapacity; an ailing President’s only option was to resign.

In 1955, Representative Emanuel Celler of New York solicited views from jurists, political scientists, and public officials about the idea of the President being able to declare his own inability.² In 1956, Celler issued a House Judiciary Committee report summarizing their views, which reflected wide agreement that the President’s self-declaration would be proper.³ Celler put his own proposal into a bill to enable the President to declare his own inability without any check on his ability to do so.

During his tenure, President Dwight Eisenhower suffered three disabling illnesses. The Eisenhower Administration, after studying the subject, joined in Celler’s reform effort.⁴ In 1958, Eisenhower created as a temporary solution a letter agreement with Vice President Richard Nixon. Under this agreement, the presidential powers and duties would be transferred to Nixon if Eisenhower became disabled.⁵ This transfer would occur if the President declared his own inability. If the President was unable to do so, the Vice President could declare the President unable after “consultation” as seemed “to him appropriate under the circumstances.”⁶ In either case, the President could decide for himself when the inability ended. There was no check on the President’s returning to his powers and duties.⁷ This agreement would help to form the basis for Section 3 of the Twenty-Fifth Amendment. (Following Eisenhower’s example, Presidents John Kennedy and Lyndon Johnson created identical letter agreements with their respective Vice Presidents.⁸)

Development of Section 3

In the late 1950s and early 1960s, Senator Estes Kefauver of Tennessee chaired the Senate Judiciary Committee’s Subcommittee on Constitutional Amendments. Kefauver held a series of hearings on the subject of presidential inability with the goal of proposing a constitutional amendment. In August 1963, after Kefauver’s death, Senator Birch Bayh of Indiana became the new chairman of the subcommittee. Bayh dedicated himself to continuing Kefauver’s initiative.⁹ After President Kennedy’s assassination, various organizations, including especially the American Bar Association (ABA), were also motivated to find a permanent solution to the disability problem. The state of the world at the time and the threat of nuclear war with the Soviet Union further emphasized the need to prevent any gaps in presidential leadership.¹⁰

Senator Bayh’s initial proposal for a constitutional amendment included (1) a provision empowering a President to declare in writing his own inability and transfer his powers and duties to the Vice President as Acting President and (2) language providing that if the President does not so declare, the Vice President, “if satisfied that such an inability exists, shall, upon the written approval of a majority of the heads of the executive departments in office, assume the discharge of the powers and duties as Acting President.”¹¹ The language empowering the President to declare his own inability followed the model of Eisenhower’s agreement with Nixon. Another Bayh provision authorized Congress to resolve the issue in the event of a dispute between the President and other relevant officials with respect to the President’s ability to discharge his duties.¹²

In January 1964, the ABA convened a group of twelve lawyers to formulate its position on the subject. Included in this group was Herbert Brownell, Eisenhower’s Attorney General, who had helped to develop the Administration’s approach to presidential inability.¹³ Bayh, who also participated in the meeting, would praise the ABA and the initiative by the Eisenhower Administration.¹⁴

Hearings on the proposed constitutional amendment on presidential inability and vice presidential vacancy led the Senate Subcommittee on Constitutional Amendments to approve Senate Joint Resolution (S.J. Res.) 139 in May 1964 with changes that included dropping a provision for a Cabinet line of succession. The full Judiciary Committee approved it in August with changes and the issuance of a report.¹⁵ It came up for debate in the Senate on September 28, 1964, and was approved by a voice vote and then again the next day on a roll call vote of 65 to 0.¹⁶

S.J. Res. 139 was re-introduced in January 1965 by Senator Bayh as S.J. Res. 1 and by Representative Emanuel Celler as House Joint Resolution (H.J. Res.) 1. A one-day Senate hearing followed with several key witnesses, including Attorney General designate Nicholas Katzenbach, former attorney general Herbert Brownell, and ABA President Lewis Powell, appearing in support of the proposed amendment. In February 1964, both the full Senate Judiciary Committee and its Subcommittee on Constitutional Amendments approved the proposed amendment with amendments. It was debated in the Senate on February 19 and approved by a roll call vote of 72 to 0.¹⁷

House Judiciary Committee hearings began in February 1965, and following their conclusion in March, H.J. Res. 1 was approved by the Committee with changes from S.J. Res. 1 as approved in the Senate. In the House of Representatives, William McCulloch of Ohio and Richard Poff of Virginia successfully pressed the case for time limitations and procedures in the Constitution when cases of presidential inability were declared by the Vice President and Cabinet and challenged by the President. In April 1965, after an extensive debate in the House, the proposed amendment was approved by a vote of 368 to 29.¹⁸ The conference committee appointed to resolve differences between the House and Senate was chaired by Senator Bayh with Representative Poff as vice chairman. The committee issued a unanimous report in June 1965 that was adopted by Congress on July 6, 1965,¹⁹ as the proposed Twenty-Fifth Amendment. The amendment was finally ratified on February 10, 1967.

Throughout the period from December 1963 to July 1965, members of both major political parties in both houses of Congress supported and urged the adoption of a constitutional amendment to handle presidential inabilities and vice presidential vacancies. President Eisenhower weighed in with his support as did President Johnson in a special message to Congress in January 1965. In the Senate Subcommittee on Constitutional Amendments hearings, Bayh stated that “here we have a constitutional gap—a blind spot if you will. We must fill this gap if we are to protect our Nation from the possibility of floundering in the sea of public confusion and uncertainty, which often times exists at times of national peril and tragedy.”²⁰ In the House, Celler stated that the presidential inability gap “becomes more threatening as the complexity of the domestic and foreign policy grows.” He noted that the proposal, while it did not meet every conceivable contingency, did meet “foreseen contingencies,” especially the “practical human problems with reference to Presidential inability.”²¹

Section 3 in Practice

Presidents can invoke Section 3 whenever they recognize that they are unable to discharge the powers and duties of office. Additionally, declarations of inability under Section 3 can be prospective and conditional in nature. For example, declarations can declare the circumstances under which they become effective, including the hour when the Vice President becomes Acting President.²² Since the adoption of the Twenty-Fifth Amendment, three Presidents—Ronald Reagan, George W. Bush, and Joseph R. Biden—have invoked Section 3 to transfer their powers and duties to the Vice President as Acting President in circumstances involving general anesthesia.

In March 1981, Reagan was seriously wounded when he was shot. He entered the hospital conscious and underwent emergency surgery. Although Reagan was in the hospital for several days while recovering, he did not invoke the Twenty-Fifth Amendment.²³

In July 1985, Reagan underwent surgery to remove a large polyp from his colon. Before receiving general anesthesia, he signed a letter that was prepared for him by White House Counsel Fred Fielding. The letter directed Vice President George H.W. Bush to discharge the powers and duties of the presidency,²⁴ but it also said that Reagan did “not believe that the drafters [of the Twenty-Fifth] Amendment intended [Section 3’s] application to situations such as the instant one.” The letter asserted that the transfer of power was consistent with a “long-standing arrangement” between Reagan and Bush, and Reagan said he did not intend that the transfer should set a precedent for future Presidents.²⁵ Reagan appeared to disclaim Section 3’s use but nevertheless followed all of the provision’s requirements. He sent his letter to the Speaker of the House and the President Pro Tempore of the Senate, notifying them of the transfer of power. Eight hours after the procedure was completed, Reagan sent those officials another letter notifying them that he was reassuming the President’s powers and duties. In their respective memoirs, Reagan and his wife Nancy acknowledged that he had used Section 3.²⁶

President Reagan’s White House Counsel’s Office compiled a binder with guidance for using the Twenty-Fifth Amendment. A memorandum in the binder emphasized that Section 3 is “eminently preferable” to Section 4, which provides for involuntary transfers of presidential powers. The memo cites Section 3’s simplicity compared to Section 4 and says that its use would be “justly perceived as a voluntary and conscious decision by the President.”²⁷

In 2002 and 2007, President George W. Bush invoked Section 3 when he underwent colonoscopies. The transfers of presidential powers and duties to Vice President Richard Cheney lasted for about two hours. Before undergoing anesthesia on both occasions, Bush sent letters to the Speaker of the House and Senate President Pro Tempore, and he later sent letters notifying them that he was retaking power as required by Section 3.²⁸ The Reagan-era binder was updated and passed along from Administration to Administration at least until the Donald Trump Administration.²⁹ The Obama Administration had comprehensive plans for presidential succession,³⁰ but it is not known whether those plans included the same binder.

President Donald Trump may have had a colonoscopy in 2019. The White House Press Secretary at the time strongly implies in her book that he underwent the procedure without telling the public or invoking Section 3.³¹ In October 2020, President Trump was hospitalized for several days while he recovered from COVID-19.³² He did not invoke the Twenty-Fifth Amendment on that occasion. On November 19, 2021, President Joseph R. Biden had a routine colonoscopy under general anesthesia and had a potentially cancerous polyp removed. Following Section 3’s protocol, Biden sent letters to the legislative leaders notifying them of his transfer of presidential powers and duties to Vice President Kamala Harris and his resumption of those powers and duties.³³

Between 1985 and 2021, other Presidents considered using Section 3 without ultimately doing so. They included Jimmy Carter;³⁴ George H.W. Bush;³⁵ Bill Clinton, whose doctor saw Section 3 as a possibility for knee surgery;³⁶ and Barack Obama, who had a “virtual” colonoscopy.³⁷

Open Questions

• The Framers of the Twenty-Fifth Amendment understood that its inability provisions did not address every gap in the Constitution. Senator Sam Ervin of North Carolina, a strong supporter of S.J. Res. 1, analogized the comprehensive drafting of the provision to “the old adage that too many cooks would spoil the broth” and described the final product as the “very best possible resolution on the subject obtainable in the Congress of the United States as it is now constituted.”³⁸ The “broth” referenced by Ervin included suggestions concerning inabilities of both a President and Vice President, the inability of a President when there is no Vice President, and the inability of an Acting President.³⁹ The inability dealt with in the Twenty-Fifth Amendment is that of a President, not a Vice President. Sections 3 and 4 assume there is an able Vice President. If the President and Vice President are disabled, the Amendment does not work. As for a disabled Acting President, when the Vice President is Acting President, for example, there is no vacancy in the Vice Presidency at that point. One then must move away from the Twenty-Fifth Amendment and deal with the line of succession as an aid.
• Since September 11, 2001, congressional hearings, bills, and resolutions, as well as reports of commissions, symposia, law school clinics, articles, and books, have advanced recommendations for possible additions to the Twenty-Fifth Amendment in areas of presidential and vice presidential inability. In the meantime, the Twenty-Fifth Amendment has provided a safety net that set well, as Senator Michael Mansfield of Montana put it on September 28, 1964, “in the building which is this republic.”⁴⁰
• What are the different scenarios in which Section 3 could be invoked? The 1985 Commission on Presidential Disability identified “three different medical contingencies: an emergency, a planned procedure, and treatment of chronic ailments.”⁴¹ What sorts of guidelines would be appropriate for each contingency? President George H.W. Bush and Vice President Dan Quayle discussed these contingencies.⁴²
• What would happen if the Vice President was incapacitated and the President recognized or anticipated his own inability? The President would undoubtedly hesitate to invoke Section 3 when it would result in transferring powers and duties to an incapacitated Vice President. An incapacitated Vice President could not resign, and there is no way to replace an incapacitated Vice President short of impeachment. Section 3 would effectively become inoperable. Could Congress pass a law allowing the President and the Cabinet to declare the Vice President unable, which would make it possible for the President to transfer power to the next person in the line of succession after the Vice President (the Speaker of the House barring a vacancy in that office) in the event of a vice presidential inability?⁴³ Could Congress pass a law allowing the President, with a majority of the Cabinet, to declare the Vice President unable, thus designating someone else as Acting Vice President?⁴⁴
• Could a President create a “prospective declaration” of inability? This declaration would identify specific situations or ailments that would render the President unable to discharge the office’s power and duties. If any of those contingencies occurred, presidential powers would automatically transfer to the Vice President under Section 3.⁴⁵ Who would adjudge if one of those situations was triggered? What would happen if the President disagreed and said the situation had not yet occurred?

1. John D. Feerick, From Failing Hands: The Story of Presidential Succession 121–28 (1965), https://perma.cc/6QWC-9UBF; Candice Millard, Destiny of the Republic: A Tale of Madness, Medicine, and the Murder of a President (2011). ↩︎
2. Feerick, From Failing Hands, supra at 238–39. ↩︎
3. Id. ↩︎
4. Id. ↩︎
5. Id. at 228–29. ↩︎
6. Id. ↩︎
7. Id. ↩︎
8. Id. ↩︎
9. Id. at 242–44. ↩︎
10. Rebecca C. Lubot, “A Dr. Strangelove Situation”: Nuclear Anxiety, Presidential Fallibility, and the Twenty-Fifth Amendment, 86 Fordham L. Rev. 1175, 1178 (2017). ↩︎
11. John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications 71–74 (3rd. ed., 2014). ↩︎
12. Id. at 299–305. ↩︎
13. Feerick, From Failing Hands, supra at 243–57. ↩︎
14. John D. Feerick, The Twenty-Fifth Amendment—In the Words of Birch Bayh, Its Principal Author, 89 Fordham L. Rev. 31, 36–37 (2020). ↩︎
15. Feerick, History and Applications, supra at 75–78. ↩︎
16. Id. at 78. ↩︎
17. Id. at 91. ↩︎
18. Id. at 100. ↩︎
19. Feerick, In the Words of Birch Bayh, supra at 44–50. ↩︎
20. Id. at 63. ↩︎
21. Id. at 95. ↩︎
22. Feerick, History and Applications, supra at 198–99. ↩︎
23. Fred F. Fielding, An Eyewitness Account of Executive “Inability,” 79 Fordham L. Rev. 823, 825–29 (2010). ↩︎
24. Feerick, History and Applications, supra at 196–99. ↩︎
25. Letter from President Ronald Reagan to the President Pro Tempore of the Senate and Speaker of the House of Representatives (July 13, 1985), https://perma.cc/9ZV4-SWPD; Feerick, History and Applications, supra at 196–99. ↩︎
26. Feerick, History and Applications, supra at 198–99. ↩︎
27. Office of White House Counsel, Contingency Plans: Death or Disability of the President (Mar. 16, 1993), https://perma.cc/Q84E-DVLD. ↩︎
28. Feerick, History and Applications, supra at 202–03. ↩︎
29. Fielding, supra at 828–29; John Rogan, Improving the White House Plans for Presidential Inability, Lawfare (May 9, 2018), https://perma.cc/TV3K-H3DA. ↩︎
30. Second Fordham University School of Law Clinic on Presidential Succession, Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System, 86 Fordham L. Rev. 917, 934 n.82 (2017). ↩︎
31. Stephanie Grisham, I’ll Take Your Questions Now: What I Saw in the Trump White House 284 (2021). ↩︎
32. Noah Weiland et al., Trump Was Sicker than Acknowledged with Covid-19, N.Y. Times (Feb. 11, 2021), https://bit.ly/3TNKPeB. ↩︎
33. John D. Feerick & John Rogan, Invoking the 25th Amendment Should Be As Routine As A Colonoscopy, Washington Post (Nov. 21, 2021), https://bit.ly/4kdd3dH. ↩︎
34. Robert J. Lipshutz, Office of White House Counsel, Documents from Carter’s Contemplated Use of Section 3 (1978), https://perma.cc/XK4B-NW84. ↩︎
35. Feerick, History and Application, supra at 200–01. ↩︎
36. E. Connie Mariano, In Sickness and in Health: Medical Care for the President of the United States, in Managing Crisis: Presidential Disability and the 25th Amendment 83, 93 (Robert E. Gilbert ed., 2000). ↩︎
37. Lawrence K. Altman & Jeff Zeleny, President in “Excellent Health,” Routine Checkup Finds, N.Y. Times (Feb. 28, 2010), https://bit.ly/3I9e88R. ↩︎
38. Feerick, In the Words of Birch Bayh, supra at 49–50. ↩︎
39. Feerick, History and Applications, supra at 93. ↩︎
40. Feerick, In the Words of Birch Bayh, supra. ↩︎
41. Miller Ctr. Comm’n No. 4, Report of the Commission on Presidential Disability and the Twenty-Fifth Amendment (1988), https://perma.cc/6SS4-BGP6. ↩︎
42. John D. Feerick, Remarks, Presidential Succession and Impeachment: Historical Precedents, From Indiana and Beyond, 52 Ind. L. Rev. 43, 66–67 (2019); Presidential Disability: Papers, Discussions, and Recommendations on the Twenty-Fifth Amendment and Issues of Inability and Disability Among Presidents of the United States (Robert J. Joynt & James F. Toole eds., 2001). ↩︎
43. Fordham University School of Law’s Clinic on Presidential Succession, Ensuring the Stability of Presidential Succession in the Modern Era, 81 Fordham L. Rev. 1, 27 (2012). ↩︎
44. Second Fordham Clinic, supra at 934 n.82. ↩︎
45. First Fordham Clinic, supra at 31–32; Second Fordham Clinic, supra at 930–37. ↩︎