The U.S. Constitution’s Twenty-Fifth Amendment: Succeeding to the Presidency
The Twenty-Fifth Amendment, ratified in 1967, made some arrangements about the presidency and vice presidency, most of which ought to have been tackled much earlier.
When the president dies, resigns, or is removed from office, does the vice president become president or only acting president?
By 1967, this question had long been settled in practice. When President William Henry Harrison died on April 4, 1841, just one month after his inauguration, he was succeeded by vice president John Tyler. But was Tyler then president or only acting president? Article II, Section 1, Clause 6 of the Constitution was ambiguous. Tyler, a southern Democrat in a Whig administration, was surrounded by enemies who did not want him to be the president but only acting president — the vice president acting as president. Tyler himself was equally adamant that he was the president, and he managed to get Congress to agree.
Tyler struck a blow not only for himself but also for all subsequent vice presidents succeeding to the presidency, all of whom were recognized as being presidents and not just acting presidents.
The Twenty-Fifth Amendment belatedly endorsed Tyler’s position — luckily, otherwise we’d have to renumber all the presidents since 1841 and disqualify a few of them. Section 1 of the amendment provides in clear and simple terms that
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
The next question that the Twenty-Fifth Amendment addresses was completely neglected for 180 years: Who takes over as vice president when the vice president becomes the president — or when the vice president simply drops dead (which has also happened)?
The answer to this question until the Twenty-Fifth Amendment came along was: nobody. That’s right. The Constitution previously just allowed the vice presidency to remain vacant. Was that a problem? Not really, because since 1792 there has been a presidential Succession Act laying down a long and detailed line of succession to the presidency.
But now Section 2 of the Twenty-Fifth Amendment provides for the appointment of a new vice president when the vice presidency falls vacant. Here’s what it says:
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.
This provision has been used twice. The first time was when president Richard Nixon picked Congressman Gerald Ford to succeed Spiro Agnew when Agnew resigned as vice president in 1973. Then, when Ford became president on Nixon’s resignation in 1974, Ford appointed former New York Governor Nelson Rockefeller as vice president.
Sections 3 and 4 of the Twenty-Fifth Amendment deal with another neglected (but this time very real) problem — arrangements for when the president is incapacitated. These sections provide that, when that situation occurs, the vice president becomes “acting president.”
Amazingly, the presidency lasted for 180 years without any such provision in place — although there was clearly a need for it. For example, in 1881, President James Garfield lingered for 80 days before dying from an assassin’s bullet, during which time he was unable to attend to affairs of state. President Woodrow Wilson’s incapacity from a stroke was kept even from his vice president and — by his wife, who was the effective president for the last year and a half of his second term.
Section 3 provides for the situation when the president himself recognizes his incapacity, which was done once by president Ronald Reagan and twice by president George W. Bush. On all three occasions, the transfer of power to the vice president as “acting president” lasted a very short time.
Section 4, which has never been used, deals with the much trickier situation when the vice president and Cabinet decide that the president is “unable to discharge the powers and duties of his office.” This provision is potentially dangerous, as it could be used as a political weapon against a president who is disliked by his vice president and a majority of his Cabinet — which is not at all impossible.