The Presidential Succession Amendment—Sections 1 and 2

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

—John D. Feerick

Introduction

The tragic death of President John F. Kennedy on November 22, 1963, called attention to weaknesses and ambiguities in the Constitution’s provision for presidential succession. For a brief moment, there was hope the President might survive the assassin’s bullet. Vice President Lyndon Johnson’s succession to the presidency took place while some wondered what might have been if Kennedy had lived, unconscious and disabled. Incentivized by the risk of such uncertainty, members of Congress proposed the Twenty-Fifth Amendment to the Constitution on July 6, 1965.¹ The amendment was ratified by three-fourths of the States on February 10, 1967, and proclaimed by President Johnson at a White House ceremony thirteen days later.² The amendment’s four sections address the constitutional effect of specific succession contingencies, provide for the filling of a vice presidential vacancy, and set out procedures for handling presidential inabilities.

History of Presidential Succession

In 1841, shortly after his inauguration, William Henry Harrison became the first President to die in office. When Vice President John Tyler asserted that he had become President, critics argued that Tyler was simply exercising the powers of the presidency but had not assumed the office. 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. . . .” What “devolve[d] on the Vice President”: the “Office of the President” or merely the “Powers and Duties of the said Office”? The text was unclear as to whether the Vice President became President or discharged the powers and duties of the presidency without assuming the office.³ (See Essay No. 97.)

In the face of this uncertainty, Tyler set what became known as “the Tyler Precedent,” which would cause much confusion in the following decades.⁴ In 1881, a shooting left President James Garfield incapacitated. The Tyler Precedent was one of several reasons why Vice President Chester A. Arthur resisted succession. Arthur worried that he would become President under this precedent and permanently displace Garfield regardless of whether Garfield recovered.⁵ Nearly forty years later, similar concerns about the Tyler Precedent arose after President Woodrow Wilson suffered a stroke.⁶ Section 1 of the Twenty-Fifth Amendment would address the Tyler Precedent.

Section 1

In 1963, Senator Birch Bayh of Indiana chaired the Senate Judiciary’s Subcommittee on Constitutional Amendments. Bayh described Section 1 as the heart of the amendment.⁷ It provided that “[i]n case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” This text resolved the ambiguity in the Constitution’s original succession provision regarding the status of a Vice President. The Vice President would not simply exercise the President’s powers; he would replace the former President and assume the office of the presidency.

Section 1 codifies the Tyler Precedent—but only for death, resignation, and removal. In those contingencies, the Vice President becomes President. Sections 3 and 4 deal with inability separately, letting the Vice President serve as Acting President during presidential inabilities. (See Essay Nos. 213 and 214.) The amendment makes clear that the President can return to the office’s powers and duties upon recovery. The President remains President for the duration of an inability, just without the office’s powers and duties.

Death, resignation, and removal cause permanent terminations of the presidency, in which case it would cause no problems for the Vice President to become President permanently. But inability is a temporary state from which the President may recover, and the Vice President may be seen as too eager to displace the President. In testimony before the House Judiciary committee, Bayh noted that it would be a mistake to include “inability” in the same list as death, resignation, and removal. He explained that the Twenty-Fifth Amendment would make “it easier for the Vice President to assume presidential duties” while allowing the Vice President to “act [temporarily] and not make it look as if he is power hungry.”⁸

Section 2

Section 2 establishes a method for selecting a Vice President whenever a vacancy occurs in that office: “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both houses of Congress.” The use of “vacancy” in Section 2 covers the contingencies of the Vice President’s death, resignation, and removal. There would also be a “vacancy” when the presidency is vacant, and the incumbent Vice President would become President. In this case, the new President would leave a vacancy in the vice presidency.

A vacancy under Section 2 does not occur when the Vice President has an inability. What happens if both the President and Vice President have an inability? The congressional debates about the Twenty-Fifth Amendment suggest that Section 2 does not apply to such dual inabilities.⁹ In this scenario, the person who is next in the line of succession would act as President only, under the Presidential Succession Act, without the power to nominate a Vice President.¹⁰

Nominating a New Vice President

When there is a vacancy in the office of Vice President, Section 2 empowers the President to make a single nomination. If that nomination failed, the President would make another nomination.¹¹ A President is not limited as to whom he nominates for the position. The President is left free to choose the best qualified person for assistance with the burdens of office and international travel.¹² An earlier version of the amendment directed the President to make a nomination within thirty days of a vice presidential vacancy, but this requirement was dropped.¹³ The congressional debates indicate that the President should act with dispatch in making a nomination and that Congress will determine the time it needs to exercise its confirmation duty.¹⁴

Confirming a New Vice President

Under Article II of the Constitution, the President nominates officers in executive and judicial branches with the “advice and consent” of the Senate. This simple majority vote by the Senate does not involve the House. However, under Section 2 of the Twenty-Fifth Amendment, both the Senate and the House must approve the new Vice President. This bicameral confirmation process gave the fullest expression to the voice of the people by the inclusion of the House of Representatives.¹⁵

Senator Bayh said “confirmation” was used instead of “advice and consent” (the language used in Article II) to avoid implications that might come from past precedent involving “advice and consent.”¹⁶ The conjunction of “nomination” with “confirmation” makes clear that recess appointments of a Vice President are not permitted under Section 2 of the amendment as they would be under the “advice and consent” processes. The word “confirmation” also excludes the possible use of recess appointments as with presidential nominations requiring the advice and consent of the Senate only.¹⁷ Senator Bayh analogized the nomination and confirmation processes under the Twenty-Fifth Amendment to the existing nomination and election processes for President and Vice President.¹⁸

The Twenty-Fifth Amendment and the Presidential Succession Act

Throughout the Twenty-Fifth Amendment’s development, reference was made to the importance of keeping the vice presidency filled at all times, subject to gaps when nominations to fill a vacancy were pending before Congress. In making the case for keeping the vice presidency filled at all times, Senator Bayh pointed to the pace of international affairs and military security.¹⁹ Prior to the Twenty-Fifth Amendment, the office of Vice President was vacant for thirty-seven years as a result of eight presidential successions, the deaths of seven Vice Presidents, and the resignation of Vice President John C. Calhoun.²⁰ But if the presidency and vice presidency were both vacant, the Presidential Succession Act would be available if needed.

Throughout American history, there have been two primary approaches to presidential succession. The first approach placed the presiding officers of Congress—the Speaker of the House and the Senate President Pro Tempore—as first in line after the Vice President. In 1886, Congress changed the line of succession to run to the heads of the executive departments in the order of their creation.

In 1945, President Harry S. Truman asserted that the Speaker of the House was the appropriate official to be the next successor after the Vice President. In Truman’s view, the Speaker is an elected official who is chosen for the speakership by representatives of the people.²¹ The Presidential Succession Act of 1947, which remains in effect, places the Speaker as first in line, followed by the Senate President Pro Tempore, and then by the heads of the executive departments in the order of their creation.²²

An earlier version of the Twenty-Fifth Amendment provided a new line of succession in which the heads of the executive departments would be the immediate successors after the Vice President. Filling a vacancy in the vice presidency would have minimized the need to reform existing law and also would have been offensive to the then-Speaker of the House of Representatives.²³ However, Senator Bayh dropped these provisions.²⁴ Had the Twenty-Fifth Amendment not been in place when President Richard Nixon resigned, under the existing line of succession with a Speaker of the other party first in line, the nation might have undergone a constitutional crisis instead of a peaceful transition.

Sections 1 and 2 in Practice

Section 2 was applied on two occasions in 1973 and 1974 but not since then. In October 1973, Vice President Spiro Agnew resigned as part of a plea bargain, nolo contendere, to resolve criminal tax evasion charges. Agnew’s resignation created a vacancy in the office of Vice President. On October 12, President Nixon nominated Representative Gerald Ford, the Republican Minority Leader, to be the new Vice President. Ford testified at hearings in both houses. His nomination was approved by the Senate on November 27, 1973, by a vote of 92 to 3 and by the House on December 6, 1973, by a vote of 387 to 35. Ford was then sworn in by Chief Justice Warren Burger before a joint session of Congress in the House chamber.²⁵

On August 9, 1974, President Nixon resigned as a result of the Watergate scandal and impeachment charges brought by the House Judiciary Committee. Vice President Ford immediately succeeded to the presidency under Section 1 of the Twenty-Fifth Amendment.²⁶ On August 20, President Ford nominated New York Governor Nelson Rockefeller to be his successor as Vice President. Rockefeller went through a lengthy confirmation process that resulted in his being confirmed by the Senate on December 10, 1974, by a vote of 90 to 7 and by the House on December 19, 1974, by a vote of 287 to 128. Rockefeller was then sworn in as the forty-first Vice-President in the Senate chamber by Chief Justice Burger.²⁷

For the next two years, President Ford and Vice President Rockefeller effected a successful transition as confirmed by witnesses who testified before Senate review hearings in 1975.²⁸

1. John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications 56–104 (3rd ed. 2014). ↩︎
2. John D. Feerick, The Twenty-Fifth Amendment—In the Words of Birch Bayh, Its Principal Author, 89 Fordham L. Rev. 31 (2020). ↩︎
3. Joel K. Goldstein, Taking From the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 Fordham L. Rev. 959, 966 (2010). ↩︎
4. Id. ↩︎
5. Id. at 966–67; Candice Millard, Destiny of the Republic: A Tale of Madness, Medicine and the Murder of a President (2011). ↩︎
6. John D. Feerick, From Failing Hands: The Story of Presidential Succession 171–72 (1965), https://perma.cc/6QWC-9UBF. ↩︎
7. Feerick, The Twenty-Fifth Amendment—In the Words of Birch Bayh, supra at 34. ↩︎
8. Presidential Inability: Hearings on H.R. 836 et al. Before the H. Comm. on the Judiciary, 89th Cong. 80 (1965), https://perma.cc/5X8A-B85F. ↩︎
9. Feerick, History and Applications, supra at 115; 111 Cong. Rec. 3253 (1965); Presidential Inability, supra at 86–87. ↩︎
10. Feerick, History and Applications, supra at 109. ↩︎
11. Presidential Inability, supra at 50, 54; Hearings on Presidential Inability and Vacancies in the Office of Vice President Before the Subcomm. on Const. Amends. of the S. Comm. on the Judiciary, 88th Cong. 62, 205 (1964), https://perma.cc/CC6D-GVSM. ↩︎
12. Feerick, History and Applications, supra at 109. ↩︎
13. Id. at 71–74. ↩︎
14. Id. at 111. ↩︎
15. Id. at 109–10. ↩︎
16. Presidential Inability, supra at 45. ↩︎
17. Id. at 110; Roy E. Brownell II, Can the President Recess Appoint a Vice President?, 42 Pres. Stud. Q. 622 (2012). ↩︎
18. 109 Cong. Rec. 24,421 (1963). ↩︎
19. Id. ↩︎
20. Feerick, History and Applications, supra at 314. ↩︎
21. Harry S. Truman, Special Message to the Congress on Succession to the Presidency (June 19, 1945), https://perma.cc/8XQL-4QXF. ↩︎
22. Feerick, From Failing Hands, supra at 204–10. ↩︎
23. Feerick, History and Applications, supra, at 71. ↩︎
24. Id. at 71–75. ↩︎
25. Id. at 135–57. ↩︎
26. Id. at 158–66. ↩︎
27. Id. at 221–52. ↩︎
28. Examination of the First Implementation of Section Two of the Twenty-Fifth Amendment: Hearing Before the Subcomm. on Const. Amends. of the S. Comm. on the Judiciary, 94th Cong. (1975), https://perma.cc/23ED-CCKD. ↩︎