The Presidential Succession Amendment—Section 4

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 principal 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.

—John D. Feerick

Introduction

Section 4 of the Twenty-Fifth Amendment allows the Vice President, acting either with a majority of the Cabinet (i.e., principal officers of the executive departments) or with “such other body as Congress may by law provide,” to declare the President “unable to discharge the powers and duties of his office.” Such a declaration would temporarily transfer presidential powers and duties to the Vice President as Acting President. The President can declare that he is able to resume his powers and duties, but the Vice President and a majority of the Cabinet or, again, “such other body as Congress may by law provide” can override that declaration. Ultimately, the decision falls to Congress. A two-thirds vote of each house designates that the Vice President will continue to serve as Acting President. If that vote fails, the President resumes his powers and duties. (Sections 1 and 2 are discussed in Essay No. 212; Section 3 is discussed in Essay No. 213.)

Step 1: The Vice President, after declaring the President’s inability with the Cabinet, immediately becomes Acting President

Section 4 may be invoked when the Vice President and Cabinet determine that the President is “unable to discharge the powers and duties of his office,” but any member of the Cabinet can raise the subject for discussion.¹ The Vice President must join with a “majority of either the principal officers of the executive departments or of such other body as Congress may by law provide.” The Vice President and other officials must then send a written declaration of inability to the Speaker of the House of Representatives and the President pro tempore of the Senate, at which point the Vice President will “immediately” become Acting President.

This text gives rise to two important questions. First, what is an “inability”? The Framers of the Constitution included “inability” as a succession contingency but left the country no discussion of its meaning and duration.² Nor does the Twenty-Fifth Amendment define “inability.” However, the provision’s framers spoke often of its reach.

In 1965, Senator Birch Bayh of Indiana said that the words “inability” and “unable” in Section 4 “refer to an impairment of the President’s faculties” that renders him “unable to make or communicate his decisions of his own competency to execute the powers and duties of his office.”³ Bayh and Senator Robert F. Kennedy of New York, in a long exchange concerning the term “inability,” made clear that it meant an inability to perform all of the constitutional duties of the office of President and included both physical and mental inability. Bayh reemphasized that it included a temporary or short inability and that a President “who was unconscious for 30 minutes when missiles were flying toward this country might only be disabled temporarily, but it would be of severe consequence. . . .”⁴

Similarly, Representative Richard Poff of Virginia, another framer of the amendment, said that Section 4 covers two situations: (1) when the President “by reason of some physical ailment or some sudden accident is unconscious or paralyzed and therefore unable to make or communicate a decision” and (2) “when the President, by reason of mental debility, is unable or unwilling to make any rational decision, including particularly the decision to stand aside.”⁵ In 1965, testifying before the House Judiciary Committee, former Attorney General Herbert Brownell spoke of cases in which a President is “physically ill and his doctors recommend temporary suspension of his normal government activities,” “is going to have an operation,” or is “going abroad and might be out of reliable contact with the White House for a short period.”⁶

The legislative history makes clear that the amendment does not cover cases of a President’s unpopularity, impeachable conduct, laziness, or poor judgment. Senator Bayh emphasized that “the inability that we deal with is described several times in the amendment itself as the inability of the President to perform the powers and duties of his office.”⁷

A second question raised at the first step is which body should declare the President unable to discharge his powers and duties. The body chosen for inclusion in the amendment was “the principal officers of the executive departments.” Senator Robert Kennedy of New York stated that “the Deputies or Under Secretaries . . . would, when there clearly are vacancies in the Cabinet, become acting heads of the departments until new principal officers were confirmed, or, if Congress were not in session, until recess appointments were made.”⁸

But Congress has the power to select “another body” through a statute to function with the Vice President. The framers of the amendment chose the principal officers of the executive departments, along with the Vice President, in the belief that those close to the President would have a sense of the facts and that a decision by them would engender public confidence. This approach makes some sense because the President would have selected his Vice President and appointed his principal officers. The President exhibited trust in these officials, so they likely could be trusted to determine when the President is unable. There is a consistency between Section 4 and separation of powers principles.

In 1964, the American Bar Association recommended that Congress should be able, by statute, to select another body to invoke the amendment and work collaboratively with the Vice President. This statutory remedy would be necessary if unforeseen circumstances or contingencies made the prescribed method unworkable.⁹ Some have suggested that there are also pragmatic reasons for not vesting this power in officials that the President can fire. Robert F. Kennedy expressed reservations about the use of the Cabinet as the determining body. He said there was a need for a continued examination of that provision. Recalling President Woodrow Wilson’s disability after suffering a stroke, Kennedy observed that “there was no evidence of any overt attempt to usurp the powers of the President, [yet] the ailing President nevertheless decided to dispose of [meaning fire] any Cabinet member who seemed to present a threat.” Wilson had fired his Secretary of State when he heard that he was calling Cabinet meetings in an effort to keep the country functioning.¹⁰ Kennedy worried that a “[m]ore serious . . . conflict might follow, in a comparable situation, now that a procedure for determining disability is established.”¹¹

During the first Trump Administration, Congressman Jamie Raskin of Maryland introduced two bills to create “another body” under Section 4. Both proposals involved bodies composed of physicians and former high-ranking executive branch officials who would be appointed by congressional leaders from both parties. Each proposal attracted more than sixty co-sponsors, but neither was ultimately subject to a vote by the full House.¹²

Senator Albert Gore of Tennessee (father of the future Vice President) and other Senators expressed concern that confusion might arise if Congress created another body to work with the Vice President to declare presidential inabilities. These Senators were concerned that Section 4’s language authorizing inability declarations by “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” could support an interpretation of two co-equal bodies functioning at the same time. Senator Bayh made clear that a congressionally created “other body” would supplant the Cabinet in the Section 4 process.¹³

Step 2: The President can declare himself able and resume his powers and duties, but the Vice President and Cabinet can override that declaration

Section 4 allows the President to disagree with an inability declaration. If the President states that no inability exists, the Vice President and Cabinet or other body created by law have four days to reassert their inability declaration. During the amendment’s development, the House and Senate had different views on the length of the period for reasserting an inability declaration. The Senate specified seven days, and the House specified two days. Bayh testified before the House Judiciary Committee that the President “would have more than one chance but, having utilized the one chance, I think he would be very careful in making a second appeal to the Congress.” He added that frequent appeals to Congress “would certainly reflect the attitude with which Congress would look on his mental capacity.”¹⁴

During the four-day “waiting period,” the President would remain out of power until the Vice President and Cabinet or other body decided whether to reassert their inability declaration.¹⁵ The House and Senate would meet separately and process the issue raised, and if they failed to make a decision within twenty-one days, the President would immediately resume his powers and duties.

Step 3: Congress must convene within forty-eight hours

After the declaration is received, Congress must act quickly. The conference committee also accepted a House amendment requiring Congress to convene within forty-eight hours after the Vice President and Cabinet (or other body) had reasserted their inability determination.¹⁶ The forty-eight-hour provision was a suggestion made by House Speaker John W. McCormack to be sure that the resolution of the disagreement was done with speed, especially if Congress was in recess.¹⁷

Step 4: For the Vice President to continue serving as Acting President, within twenty-one days, two-thirds of both houses must vote that the President remains unable

The conference committee resolved a difference regarding the time that Congress has to consider a dispute over the President’s inability. The House proposal gave Congress ten days to decide the issue, and the Senate conferees did not want any limit.¹⁸ The committee settled on twenty-one days.¹⁹ For the President to remain out of power beyond the twenty-one-day review period, two-thirds of both houses of Congress would have needed to affirm the inability determination that resulted in Congress receiving the issue. Lewis Powell, president-elect of the American Bar Association, stated that “[t]he independence of the executive branch must be preserved, and a President who has regained his health should not be harassed by a possibly hostile Congress.”²⁰ It is believed that the recommendation provides appropriate safeguards for a proper balancing of the interests involved.²¹

Potential Invocations of Section 4

In 1981, President Ronald Reagan was shot and underwent emergency surgery. Reagan did not invoke Section 3 and thereby declare himself “unable to discharge the powers and duties of his office,” and there was some discussion within his Administration about whether Section 4 should be invoked.²² Absent precedents, there was confusion in the White House over what steps to take. President Reagan’s hospital aides (not the Vice President and the Cabinet) decided that it was unwise to transfer the President’s powers and duties to Vice President George H.W. Bush at that time.²³ Later in Reagan’s term in office, outgoing staff members suggested consideration of Section 4 because Reagan was allegedly “inattentive and inept,” but Chief of Staff Howard Baker quickly rejected those concerns as unfounded.²⁴

Following the Capitol attack on January 6, 2021, some Cabinet secretaries discussed whether to invoke Section 4 to remove President Donald Trump from the presidency’s powers and duties.²⁵ On January 12, 2021, the House of Representatives passed a resolution calling on Vice President Michael Pence to convene the Cabinet to invoke Section 4. Examples of Trump’s supposed “inability to discharge the most basic and fundamental powers and duties of his office” cited by the resolution included Trump’s alleged failure to provide for a peaceful transfer of power.²⁶ Vice President Pence refused to invoke the amendment. He wrote that the Twenty-Fifth Amendment “was designed to address Presidential incapacity or disability,” not to provide “a means of punishment or usurpation.”²⁷ Invocation of Section 4 was also a subject of political debate in 2024 during the latter part of the presidency of Joseph Biden.²⁸

Open Questions

• Who are the “the principal officers of the executive departments”? Which executive departments are included? Does this group include acting heads of departments?²⁹ The amendment’s legislative history indicates that acting secretaries can and should participate in the process.³⁰
• Without the Vice President’s agreement, the Cabinet or another body created by Congress cannot use Section 4. Accordingly, Section 4 is inoperable if the vice presidency is vacant or the Vice President is incapacitated. Provisions to cover vice presidential inabilities and dual inabilities of the President and Vice President were excluded from the amendment because of concerns that the added complexity would make passage of the amendment more difficult.³¹ Could Congress designate the next person in the line of succession after the Vice President to work with the Cabinet to declare both the President and Vice President unable?³² Could Congress empower the President and Cabinet to declare the Vice President unable?³³
• How should Congress resolve a dispute over presidential inability? Could Congress establish a joint committee of both houses to gather information related to the President’s capacity?³⁴
• Section 4 empowers the heads of executive departments to participate in a decision as to a President’s inability. If a vacancy exists in a department, there is evidence in the amendment’s legislative history that an acting head of the department would be authorized to participate in making such a determination.³⁵
• Can Congress designate someone to act with the Cabinet under Section 4 where there is a vacancy in the office of Vice President? Can Congress declare that a Vice President is disabled?
• During a dispute over presidential inability, can Congress make informational requests of the President or adopt rules?

1. John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications 117 (3rd ed. 2014). ↩︎
2. Art. II, § 1, cl. 6. ↩︎
3. 111 Cong. Rec. 3282 (1965). ↩︎
4. Id. at 15,380. ↩︎
5. Id. at 7941. ↩︎
6. Presidential Inability: Hearings Before the House Comm. on the Judiciary, 89th Cong. 240 (1965). ↩︎
7. Feerick, History and Applications, supra at 117; John D. Feerick, The Twenty-Fifth Amendment—In the Words of Birch Bayh, Its Principal Author, 89 Fordham L. Rev. 31 (2020). ↩︎
8. 111 Cong. Rec. 15,380 (1965). ↩︎
9. John D. Feerick, From Failing Hands: The Story of Presidential Succession 253 (1965). ↩︎
10. Feerick, In the Words of Birch Bayh, supra at 46–47. ↩︎
11. Id. ↩︎
12. H.R. 1987, 115th Cong. (2017); H.R. 8548, 116th Cong. (2020). ↩︎
13. Feerick, In the Words of Birch Bayh, supra at 48–49. ↩︎
14. Id. at 41–42. ↩︎
15. Joel K. Goldstein, Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4, 21 J. of Const. L. 73, 125–49 (2018). ↩︎
16. John D. Feerick, That Further Shore: A Memoir of Irish Roots and American Promise 257–58 (2020). ↩︎
17. Feerick, History and Applications, supra at 45–46. ↩︎
18. Id. at 192–94; Feerick, In the Words of Birch Bayh, supra at 45–46. ↩︎
19. 111 Cong. Rec. 15,379 (1965). ↩︎
20. Presidential Inability and Vacancies in the Office of the Vice President: Hearings Before the Subcomm. on Const. Amends. of the S. Comm. on the Judiciary, 88th Cong. 93 (1964). ↩︎
21. Feerick, History and Applications, supra at 114–21. ↩︎
22. Id. at 195. ↩︎
23. Id. at 192–94; Feerick, In the Words of Birch Bayh, supra at 45. ↩︎
24. Id. at 199; Arthur B. Culvahouse Jr., A White House Counsel’s Perspective on Presidential Health and the Line of Succession, 80 Fordham L. Rev. Online 79, 80 (2022). ↩︎
25. Jeff Stein, Treasury Secretary Mnuchin involved in discussions about the 25th Amendment, but is unlikely to pursue Trump’s removal, Washington Post (Jan. 8, 2021), https://perma.cc/UY2P-QXAZ. ↩︎
26. H. Res. 21, 117th Cong. (2021). ↩︎
27. Letter from Vice President Michael R. Pence to House Speaker Nancy Pelosi (Jan. 12, 2021), https://perma.cc/2XTD-U6VG. ↩︎
28. Emily Brooks, Speaker Johnson: Cabinet Should Consider Removing Biden Through the 25th Amendment, The Hill (June 28, 2024), https://perma.cc/7244-SG2G; Martin Pengelly, Republican cites 25th amendment in bid to remove ‘too old’ Biden from office, The Guardian (Feb. 27, 2024), https://perma.cc/FCC6-QLXF. ↩︎
29. James Heilpern, Acting Cabinet Secretaries & the Twenty-Fifth Amendment, 57 U. Rich. L. Rev. 1169 (2023). ↩︎
30. Feerick, From Failing Hands, supra at 117–18; Yale Law School Rule of Law Clinic, The Twenty-Fifth Amendment to the United States Constitution: A Reader’s Guide 13 (2018). ↩︎
31. Feerick, History and Applications, supra at 115. ↩︎
32. 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, 959–64 (2017); Fordham University School of Law Clinic on Presidential Succession, Ensuring the Stability of Presidential Succession in the Modern Era, 81 Fordham L. Rev. 1, 26–31 (2012); Roy E. Brownell II, What to Do If Simultaneous Presidential and Vice Presidential Inability Struck Today, 85 Fordham L. Rev. 1027 (2017). ↩︎
33. Second Fordham Clinic, supra at 964–68. ↩︎
34. Feerick, History and Applications, supra at 120. ↩︎
35. Id. at 114–18. ↩︎