In the past several years, discussions about the 25th Amendment have strayed far from its true purpose. Some saw the amendment as a backdoor way to remove a president from office, by reason of mental incapacity. The real aim of the drafters of this amendment in the 1960s was to strengthen our presidential succession system, in particular by clarifying how presidents with incapacities small and large could transfer power temporarily and regain it upon recovery. The 25th Amendment improves the ability of our institutions to function even in the midst of the disarray of the COVID-19 pandemic.
The original Constitution provided for presidential succession under numerous circumstances: removal, death, resignation and inability. No details are laid out of how power would be transferred from a disabled president to a vice president and then back to a recovered president. But the constitution clearly contemplates that such a transfer would occur, noting that the presidential successor would serve “until the Disability be removed” (Article I, sec. 2).
Despite these constitutional provisions, for most of our history, no transfer of power occurred for presidential disability even though we had numerous instances of quite significant presidential disability.
President James Garfield was shot in the summer of 1881, but lingered for more than two months until he died from complications from his shooting. President Grover Cleveland developed a tumor in his mouth and disappeared from public view for nearly a week to have surgery to remove a portion of his jaw, a procedure the administration would deny ever occurred. President Woodrow Wilson suffered a stroke and was significantly incapacitated for the last 17 months of his presidency.
The lack of details in the Constitution, the mistaken belief by some that a transfer of power to the vice president was irrevocable, and the natural worries of political figures that disclosure of illness would be a sign of weakness all led to the situation that presidential illness was often hidden and transfers of power never exercised.
With President Dwight Eisenhower, the issue of presidential disability was addressed more publicly and directly. Eisenhower had several significant health events, including a heart attack. He recognized the need for greater clarity in how a transfer of power would occur, and his administration drafted memoranda of understanding of how and when power would be transferred to Vice President Richard Nixon and then back to Eisenhower under various circumstances.
The assassination of President John F. Kennedy and these recent Eisenhower health issues were in the forefront of the thoughts of the framers of the 25th Amendment, led by Sen. Birch Bayh of Indiana, who introduced the amendment and saw it through to its ratifaction in 1967.
The 25th Amendment makes two important constitutional changes:
- If a president or vice president dies in office, a new vice president can be nominated by the president subject to confirmation of both houses of Congress.
- The amendment lays out procedures for the transfer of power in the case of presidential disability.
Most commonly, a president who knows about an upcoming disability (such as a scheduled surgery) or is alert when the disability strikes writes to Congress transferring his power to the vice president. Then when the president has recovered, he writes again to Congress reclaiming the presidency. Presidents Ronald Reagan and George W. Bush exercised this option for scheduled surgeries.
In a more severe case when a president’s inability keeps him from transferring power, the vice president—with a majority of the cabinet—writes to Congress and declares the disability and assumes the powers of the president. Again, when the president recovers and writes to Congress, power is restored to the president.
We hope that COVID-19 does not strike the leaders of our institutions, but the 25th Amendment is in place to give a president the option to step aside to recover from illness if he sees fit, or in the worst case to have the vice president take over if the president is not in a condition to make that transfer of power.
We all wish that we would not have to contemplate such extreme circumstances, but there is comfort in the fact that constitutional processes are in place to allow for the smooth and continuous functioning of the presidency even in times of great national emergency.
John C. Fortier is the director of governmental studies at the Bipartisan Policy Center and was executive director of the Continuity of Government Commission.