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fifth amendment

Twenty-fifth Amendment to the United States Constitution

The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution partially replaced the ambiguous wording of Article II, Section 1, Clause 6 of the Constitution, which deals with succession to the Presidency, and establishes procedures both for filling a vacancy in the office of the Vice President as well as responding to Presidential disabilities.

Text

Authorship and ratification

The Twenty Fifth Amendment was proposed in the Senate by Senator Birch Bayh on January 6, 1965 and in the House of Representatives by Representative Emanuel Celler July 6, 1965.

On February 19 the Senate passed the amendment by a 72-0 vote. The House passed a different version of the amendment on April 13 by a 368-29 margin. After a conference committee ironed out differences between the versions, on July 6 the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.

Just six days after its submission, Wisconsin and Nebraska were the first states to ratify the amendment. On February 10, 1967, Minnesota and Nevada were the 37th and 38th states to ratify. On February 23, 1967, in a ceremony in the East Room of the White House, General Services Administrator Lawson Knott certified that the amendment was part of the United States Constitution.

Section One: Presidential vacancy

Article II, Section 1, Clause 6 of the United States Constitution states that if the office of President became vacant, or the President became unable to discharge the powers and duties of the office, "the Same shall devolve upon the Vice President."

Did this ambiguous wording in the case of vacancy or inability mean the "office" devolved on the Vice President (i.e., he became President), or did only the "powers and duties of the office" devolve on him (i.e., he would be Acting President)? While this question was answered, regarding Presidential vacancies, when John Tyler succeeded to the office upon William Henry Harrison's death in 1841, doubts remained regarding what the wording meant when a President was unable to discharge his powers. Section 1 of the amendment clarified that the Vice President succeeds to the Presidency only if the Presidency is vacated.

Section Two: Vice Presidential vacancy

The Constitution did not provide for Vice Presidential vacancies until the Twenty fifth Amendment was ratified. The Vice Presidency has been vacant several times due to death, resignation, or succession to the Presidency. Often these vacancies lasted for many years.

Under the amendment, whenever there is a vacancy in the office of Vice President, the President nominates a successor, who becomes Vice President if confirmed by a majority vote of both Houses of the Congress.

Sections Three and Four: Presidential Disability

The Twenty-fifth Amendment provides how Presidential disability is to be determined. Abraham Lincoln lay unconscious for several hours after he was shot until he died; James Garfield was incapacitated for eighty days by an assassin's bullet before dying; a stroke rendered Woodrow Wilson disabled for the last eighteen months of his term; and Dwight D. Eisenhower suffered a heart attack in 1955 and a stroke in 1957, although in both instances he was able to return to duty quickly. Ronald Reagan was hospitalized for gunshot wounds after an assassination attempt in 1981 (see below).

Section Three: Voluntary Withdrawal

Section three provides that when the President transmits a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives, stating that he is unable to discharge the powers and duties of the Presidency, and until the President sends another written declaration to the aforementioned officers declaring himself able to resume discharging those powers and duties, the Vice President serves as Acting President.

Section Four: Involuntary Withdrawal

Section four is the only one that has never been invoked. It states that the Vice President, together with a majority of "the principal officers of the executive departments" (i.e., the Cabinet) or a majority of "such other body as Congress may by law provide", can declare the President disabled. As with Section three, the Vice President would become Acting President. An "involuntary" withdrawal may be declared for a variety of reasons. The most likely scenario, and the primary purpose of Section four, is an incapacitation that results in both the inability of a President to discharge the duties of the office of President and his inability to provide a written declaration to that effect. However, it is possible for such a declaration to be made even if the President is fully able and conscious, should the majority of his officers find grounds other than medical disability, such as insanity or an emotional instability that compromises his or her ability to be President. The President may resume exercising the Presidential duties by sending a written declaration to the President pro tempore and the Speaker of the House.

If the Vice President and Cabinet are still unsatisfied with the President's condition, they may within four days of the President's declaration submit another declaration that the President is incapacitated. The Congress must assemble within 48 hours, and within 21 days pronounce its decision. A two-thirds vote of each House of Congress is required to affirm the President as unfit. Upon this finding by the Congress that the Vice President will "continue" to discharge the Presidential duties, implying the Vice President remains Acting President unless either House of the Congress decides the issue in favor of the President or the 21 days expire without a decision. Should the Congress uphold the finding of incapacity the President remains in office, albeit stripped of all Presidential powers and duties. The Vice President would remain Acting President. However, the President may again submit a written declaration of recovery to the President pro tempore and the Speaker of the House. That declaration could be responded to by the Acting President and the Cabinet in the same way as stated earlier. Then the 21-day Congressional procedure would start again.

While the Amendment specifies the Vice President must be involved in the decision, the Amendment allows the Congress to choose a body other than the Cabinet to decide upon Presidential incapacity. That "other body" would replace the Cabinet for purpose of this Section.

Applications of the Amendment

The Twenty fifth Amendment has been invoked six times since its ratification.

Appointment of Vice President Gerald Ford (1973)

Following Spiro Agnew's resignation two days earlier, President Richard Nixon nominated long-time Michigan congressman Gerald Ford to succeed Agnew as Vice President on October 12, 1973.

The United States Senate voted 92 to 3 to confirm Ford on November 27, and on December 6 the House confirmed him 387 to 35. Ford was sworn in later that day at the United States Capitol.

Succession of President Gerald Ford (1974)

President Richard Nixon resigned on August 9, 1974. In accordance with section one, which formalized the Tyler precedent, Vice President Gerald Ford succeeded to the office of President.

Appointment of Vice President Nelson Rockefeller (1974)

By becoming President, Gerald Ford left the Vice Presidency vacant. After considering Melvin Laird and George H. W. Bush, on August 20, 1974, President Ford nominated former New York Governor Nelson Rockefeller to succeed him as Vice President.

After a long and contentious investigation, particularly to ensure that his family's business dealings would not cause conflicts of interest, Rockefeller was confirmed 90-7 by the Senate on December 10 1974. On December 19, 1974 Rockefeller was confirmed 287-128 by the House and sworn into office.

Acting President George H. W. Bush (1985)

On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a pre-cancerous lesion called a villous adenoma was discovered. Upon being told by his physician (Dr. Edward Cattow) that he could undergo surgery immediately or in two to three weeks, Reagan elected to have it removed immediately.

That afternoon, Reagan consulted with White House counsel Fred Fielding by telephone, debating whether to invoke the amendment and if so, whether such a transfer would set an undesirable precedent. Fielding and White House Chief of Staff Donald Regan both recommended that Reagan transfer power, and two letters doing so were drafted: the first specifically referencing Section 3 of the Twenty fifth Amendment, the second not.

At 10:32 a.m. on July 13, Reagan signed the second letter and ordered its delivery to the appropriate officers as required under the amendment. Due to some confusing language and Reagan's failure to specifically mention Section 3 of the amendment in his letter, some constitutional scholars have claimed that Reagan did not actually transfer his power to Bush.

However, in books such as The President Has Been Shot: Confusion, Disability and the 25th Amendment, by Herbert Abrams, and Reagan's autobiography, An American Life, Reagan's intent to transfer power to Bush was clear. Fielding himself adds, "I personally know he did intend to invoke the amendment, and he conveyed that to all of his staff and it was conveyed to the VP as well as the President of the Senate. He was also very firm in his wish not to create a precedent binding his successor."

Acting President Dick Cheney (2002)

On the morning of June 29, 2002, President George W. Bush underwent a colonoscopy and chose to invoke the amendment, temporarily transferring his powers to Vice President Cheney.

The 2002 procedure began at 7:09 a.m EDT and ended at 7:29 a.m. EDT Bush woke up twenty minutes later but did not resume his presidential office until 9:24 a.m. EDT after the president's doctor, Richard Tubb, conducted an overall examination. Tubb said he recommended the additional time to make sure the sedative had no after effects.

Unlike Reagan's 1985 letter, Bush's 2002 letter specifically cited Section 3 of the Twenty Fifth Amendment in his letter transferring power.

Acting President Dick Cheney (2007)

On the morning of July 21, 2007, President George W. Bush underwent a colonoscopy and chose to invoke the Twenty fifth Amendment, temporarily transferring his powers to Vice President Cheney. President Bush invoked Section 3 of the Twenty fifth Amendment at 7:16 a.m. EDT. He reclaimed his powers, pursuant to Section 3, at 9:21 a.m. EDT. As happened in 2002, President Bush specifically cited Section 3 of the Twenty fifth Amendment when he transferred the Presidential powers to the Vice President and when he reclaimed those powers.

Considered applications of the Amendment

There are two documented instances in which invocation of Section 4 of the Twenty fifth Amendment was considered.

1981: Reagan assassination attempt

Following the assassination attempt on President Ronald Reagan on March 30, 1981, a number of cabinet officials suggested that Vice President George H. W. Bush assume the role of Acting President under Section 4 of the amendment. Bush, however, was opposed to the idea, in part because he didn't wish to be seen as leading a de facto coup d'état.

In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, said that Section 4 should have been invoked.

1987: Reagan incapacity

Upon assuming the role of White House Chief of Staff in 1987, Howard Baker was advised by his predecessor's staff to be prepared for a possible invocation of the Twenty fifth Amendment due to Reagan's perceived laziness and ineptitude.

According to PBS's American Experience program recalling the Reagan administration: "What Baker's transition team was told by Donald Regan's staff that weekend shocked them. Reagan was 'inattentive, inept,' and 'lazy,' and Baker should be prepared to invoke the 25th amendment to relieve him of his duties." Reagan biographer Edmund Morris stated in an interview aired on the program,

"The incoming Baker people all decided to have a meeting with him on Monday, their first official meeting with the President, and to cluster around the table in the Cabinet room and watch him very, very closely to see how he behaved, to see if he was indeed losing his mental grip."
Morris went on to explain
"...Reagan who was, of course, completely unaware that they were launching a death watch on him, came in stimulated by the press of all these new people and performed splendidly. At the end of the meeting, they figuratively threw up their hands realizing he was in perfect command of himself.

Earlier proposals

The first draft of Senate Joint Resolution 1, the legislation that would ultimately be ratified as the Twenty fifth Amendment, was preceded by two other attempts to pass a constitutional amendment regarding Presidential succession: Senate Joint Resolution 35 and Senate Joint Resolution 139.

Senate Joint Resolution 35 (1963)

Senate Joint Resolution 35 was proposed by Senator Kenneth Keating of New York, and received the recommendation of the American Bar Association. Tennessee Senator Estes Kefauver (the Chairman of the Judiciary Committee's subcommittee on Constitutional Amendments), a long-time advocate for addressing the disability question, spearheaded the effort until he died because of a heart attack on August 10, 1963.

The text of the amendment reads:

Senate Joint Resolution 139 (1963)

Senate Joint Resolution 139 was proposed by Senators Bayh of Indiana (Kefauver's successor as chair of the Constitutional Amendments subcommittee) and Long of Missouri.

Where Senate Joint Resolution 35 had been seen by some as too vague in terms relating to Presidential succession and disability, this legislation was seen as too constrictive by some, as it in essence aped the Presidential Succession Act of 1947. The text of the amendment reads:

Section 1

In case of the removal of the President from office, or of his death or resignation, the Vice President shall become President for the unexpired portion of the then current term. Within a period of thirty days thereafter, the new President shall nominate a Vice President who shall take office upon confirmation by both Houses of Congress by a majority of those present and voting.

Section 2

In case of the removal of the Vice President from office, or of his death or resignation, the President, within a period of thirty days thereafter, shall nominate a Vice President who shall take office upon confirmation by both Houses of Congress by a majority vote of those present and voting.

Section 3

If the President shall declare in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4

If the President does not so declare, the Vice President, if satisfied that such inability exists, shall, upon the written approval of a majority of the heads of the executive departments in office, assume the discharge of the powers and duties of the office as Acting President.

Section 5

Whenever the President makes public announcement in writing that his inability has terminated, he shall resume the discharge of the powers and duties of his office on the seventh day after making such announcement, or at such earlier time after such announcement as he and the Vice President may determine. But if the Vice President, with the written approval of a majority of the heads of executive departments in office at the time of such announcement, transmits to the Congress his written declaration that in his opinion the President's inability has not terminated, the Congress shall thereupon consider the issue. If the Congress is not then in session, it shall assemble in special session on the call of the Vice President. If the Congress determines by concurrent resolution, adopted with the approval of two-thirds of the Members present in each House, that the inability of the President has not terminated, thereupon, notwithstanding any further announcement by the President, the Vice President shall discharge such powers and duties as Acting President until the occurrence of the earliest of the following events: (1) the Acting President proclaims that the President's inability has ended, (2) the Congress determines by concurrent resolution, adopted with the approval of a majority of the Members present in each House, that the President's inability has ended, or (3) the President's term ends.

Section 6

(a) (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President, shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Postmaster General, Secretary of Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health, Education and Welfare, and such other heads of executive departments as may be established hereafter and in order of their establishment.

(a) (2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this section.

(a) (3) To qualify under this section, an individual must have been appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, or inability of the President and Vice President, and must not be under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon him.

(b) In case of the death, resignation, or removal of both the President and Vice President, his successor shall be President until the expiration of the then current Presidential term. In case of the inability of the President and Vice President to discharge the powers and duties of the office of President, his successor, as designated in this section, shall be subject to the provisions of sections 3, 4, and 5 of this article as if he were a Vice President acting in case of disability of the President.

(c) The taking of the oath of office by an individual specified in the list of paragraph (1) of subsection (a) shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.

(d) During the period that any individual acts as President under this section, his compensation shall be at the rate then provided by law in the case of the President.

Section 7

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Joint Resolution 1 (1965)

House Joint Resolution 1 was proposed by Representative Emanuel Celler, chairman of the House Judiciary Committee, on January 4, 1965, and Senate Joint Resolution 1 was proposed by Senator Birch Bayh of Indiana on January 6, 1965. These resolutions ultimately led to what became the Twenty fifth amendment.

Original form of Joint Resolution 1 (both House and Senate versions)

Sections 1 and 2 went unchanged throughout the amendment's passage through the Congress, and consequently are not repeated. Sections 3, 4 and 5 in their original form read as follows:
Section 3
If the President declares in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4
If the President does not so declare, and the Vice President with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits to the Congress his 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.
Section 5
Whenever the President transmits to the Congress his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President, with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits within two days to the Congress his written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress will immediately decide the issue. If the Congress determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of the 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.

Proposal and ratification

Congress proposed the Twenty-fifth Amendment on July 6, 1965. The amendment was eventually ratified by every state except Georgia, North Dakota, and South Carolina. The following states ratified the amendment:

  1. Nebraska (July 12, 1965)
  2. Wisconsin (July 13, 1965)
  3. Oklahoma (July 16, 1965)
  4. Massachusetts (August 9, 1965)
  5. Pennsylvania (August 18, 1965)
  6. Kentucky (September 15, 1965)
  7. Arizona (September 22, 1965)
  8. Michigan (October 5, 1965)
  9. Indiana (October 20, 1965)
  10. California (October 21, 1965)
  11. Arkansas (November 4, 1965)
  12. New Jersey (November 29, 1965)
  13. Delaware (December 7, 1965)
  14. Utah (January 17, 1966)
  15. West Virginia (January 20, 1966)
  16. Maine (January 24, 1966)
  17. Rhode Island (January 28, 1966)
  18. Colorado (February 3, 1966)
  19. New Mexico (February 3, 1966)
  20. Kansas (February 8, 1966)
  21. Vermont (February 10, 1966)
  22. Alaska (February 18, 1966)
  23. Idaho (March 2, 1966)
  24. Hawaii (March 3, 1966)
  25. Virginia (March 8, 1966)
  26. Mississippi (March 10, 1966)
  27. New York (March 14, 1966)
  28. Maryland (March 23, 1966)
  29. Missouri (March 30, 1966)
  30. New Hampshire (June 13, 1966)
  31. Louisiana (July 5, 1966)
  32. Tennessee (January 12, 1967)
  33. Wyoming (January 25, 1967)
  34. Washington (January 26, 1967)
  35. Iowa (January 26, 1967)
  36. Oregon (February 2, 1967)
  37. Minnesota (February 10, 1967)
  38. Nevada (February 10, 1967)

Ratification was completed on February 10, 1967. The amendment was subsequently ratified by the following states:

  1. Connecticut (February 14, 1967)
  2. Montana (February 15, 1967)
  3. South Dakota (March 6, 1967)
  4. Ohio (March 7, 1967)
  5. Alabama (March 14, 1967)
  6. North Carolina (March 22, 1967)
  7. Illinois (March 22, 1967)
  8. Texas (April 25, 1967)
  9. Florida (May 25, 1967)

In popular culture

  • The Twenty-fifth Amendment has been invoked 3 times in the television series 24 in seasons 2, 4 and 6.
  • In the 2000 film The Contender, the President, in the wake of his Vice President's death, is seeking the confirmation of his replacement.
  • The Twenty-fifth Amendment is invoked in the television series The West Wing from the end of season 4 until the beginning of season 5. At the time of invocation, there is no sitting Vice President, and therefore the Speaker of the House rises to Acting President. In reality, only a Vice President can become Acting President by way of the Twenty-fifth Amendment. Unlike any of the real-life applications of the amendment, which have involved resignation or physical incapacity, The West Wing has fictional President Bartlet invoke the amendment to prevent any ethical conflict between the responsibilities of the office and his fears for the safety of his kidnapped daughter.
  • A similar scenario is portrayed in Commander in Chief. In the sixteenth episode the President is taken ill shortly after having accepted the resignation of her Vice President. The Speaker of the House is expected to defer to the President pro tempore of the Senate but controversially decides to take on the role of acting president for a day.
  • In the movie Air Force One, the members of the cabinet discuss invocation of the Twenty-fifth Amendment while the President and his family are held hostage aboard Air Force One, on the grounds that he is unable to effectively discharge his duties as President due to the threats made against his family.
  • The final mission in the 2006 video game Hitman: Blood Money is named "Amendment XXV". This part of the game tells the story of how the Vice President plots against the President to succeed him.

Notes

References

See also

External links

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