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The 25th Amendment turns 50

By John C. Fortier

Friday, February 10, 2017

Fifty years ago today, the states ratified the 25th Amendment and it became part of our Constitution. The amendment accomplished two important purposes. It provided a mechanism for filling a vacancy in the vice presidency, and—more famously—it provided greater clarity on how to deal with presidential inability, either temporary or permanent.

Amending the Constitution is difficult; it has only been done 27 times. A small fraternity of people, starting with James Madison, can claim credit for amending our nation’s foundational document.  The two members of that fraternity that we honor today are former Indiana Senator Birch Bayh and John Feerick, former Dean of Fordham Law School, who as a young lawyer, worked with Bayh to construct and ultimately enact the 25th Amendment.

The 25th Amendment provided clarity on how to deal with presidential inability, either temporary or permanent. 

For a detailed account of the issues and the history of the amendment’s conception and enactment, there is no better book than The Twenty-Fifth Amendment: Its Complete History and Application, written by an eyewitness to this history, John Feerick . But here is a short version.

In the wake of the assassination of President John F. Kennedy, the last president to die in office, Congress wrestled with questions of how stable governing is restored after a tragedy.

Our original Constitution had no mechanism for filling a vacancy in the vice presidency. In the case of the death of a president (and the assumption of the presidency by the vice president) or of the vice president, the office of vice president would remain vacant until the end of the term. Unfortunately, the early years of our republic had many such vacancies. Prior to the 1967 ratification of the 25th Amendment, eight presidents and seven vice presidents died in office, leaving the vice presidency vacant for the remainder of the term.

The 25th Amendment allowed a president, upon a vacancy in the vice presidency, to nominate a new vice president, who is to be confirmed by both the House of Representatives and the Senate. The enactment of this provision was timely: it has been exercised only twice, both times within seven years of the amendment’s ratification. When Vice President Spiro Agnew resigned, President Richard M. Nixon nominated then- House Minority Leader Gerald Ford to be Vice President, and after confirmation by the House and Senate, Ford assumed the vice presidency. Less than a year later, Nixon resigned, and now-President Ford nominated and Congress confirmed the new vice president, Nelson Rockefeller.

The more famous parts of the 25th Amendment deal with presidential inability. What if a president is permanently incapacitated or temporarily unable to perform the duties of the office? What if there is a disagreement as to whether the president is competent to exercise the office? The 25th Amendment lays out in much greater detail than the original Constitution how to proceed under these circumstances.

What if a president is permanently incapacitated or temporarily unable to perform the duties of the office?

After the ratification, a president was able to indicate that he or she is temporarily unable to exercise the duties of the office (for example before scheduled surgery) and to temporarily turn over the presidency to the vice president. In more difficult emergencies, when the president is not able to communicate his disability, the vice president—with the concurrence of a majority of the Cabinet—can indicate that the president is unable to perform the duties of the office and the vice president is to take over until the president recovers enough to declare that he or she is fit for office. Finally, in a case where the vice president and the Cabinet are at odds with the president about the president’s fitness for office, Congress can by a two-thirds vote remove the president. Otherwise, the president remains in office.

Some scholars have criticized the amendment as not covering all contingencies. But after 50 years in place, the amendment provides admirable clarity for a number of very troubling circumstances, and thankfully America has not seen an emergency  testing the more dramatic parts of the amendment.

On this 50th anniversary of the 25th amendment, we recall that our Constitution is a document for the ages, and it has been able to survive as our fundamental document with only a few changes. And the architects of these important changes that improve our constitution are worthy of the highest praise. To Senator Birch Bayh and Dean John Feerick, we commend you for all of your public service, but especially today for your work in the passage of the 25th Amendment, a bulwark to help ensure a stable government in times of trouble and emergency.

KEYWORDS: JAMES MADISON, PRESIDENT JOHN F. KENNEDY, PRESIDENT RICHARD NIXON, CONSTITUTION, PRESIDENT GERALD FORD