Article II, Section 1, Clause 6 of the Constitution provides that in the case of “the Removal of the President from Office, or his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,” those powers “shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability,” both of the president and the vice president. Congress could determine what officer shall act as president. The provision states that the officer would act “until the Disability be removed, or a President shall be elected.” Delegates at the Constitutional Convention said little about this provision. One delegate brought attention to the ambiguities in the Presidential Succession Clause, asking “What is the extent of the term ‘disability’?” and “who is to be the judge of it?” Perhaps the Framers believed that they had satisfactorily addressed the issue of succession. In Federalist No. 68, Hamilton observed that the vice president “may occasionally become a substitute for the President, in the supreme executive magistracy.”
In 1792, Congress passed the Succession Act to provide for the removal, death, resignation, or inability both of the President and Vice President. The measure designated the President pro tempore of the Senate first and the Speaker of the House of Representatives second. They would serve temporarily until “the disability be removed or a President shall be elected.” The Act established procedures for those elections. Those who would serve as President and Vice President had to meet the constitutional requirements of age, residence and natural-born citizenship.
The assassination of President James A. Garfield pushed Congress to pass the Succession Act of 1886. Garfield, shot by an assassin on July 2, 1881, lingered for 79 days before dying from wounds on September 19. The offices of Speaker and President pro tempore were vacant throughout his illness. The House had not convened to elect a new Speaker; the Senate had failed to elect a President pro tempore. The 1886 statute transferred succession after the Vice President from the President pro tempore and the Speaker of the House to cabinet officials, in the order in which their offices were created: Secretary of State, Secretary of the Treasury, Secretary of War, Attorney General, Postmaster-General, and so on. That act governed until 1947.
The Presidential Succession Act of 1947 represented a reaction to the general concerns inspired by a legal scheme that would send to a vacant Presidency unelected cabinet officers, instead of democratically elected leaders of Congress. When Vice President Harry Truman succeeded to the Presidency following the death of President Franklin D. Roosevelt in April of 1945, he lamented the fact that the nation would have an unelected Vice President for nearly four years. Moreover, as he pointed out, “Since the members of the Cabinet are all presidential appointees,” he reasoned in his Memoirs, “the law gave me the power to appoint my own successor until a new Vice President could be elected.” He thought this was a power “no president ought to possess.”
On June 19, 1945, in a special message to Congress, Truman urged a revision of the 1886 statute in the interest of “orderly, democratic government.” Under the 1947 Succession Act, which embodied most of Truman’s recommendations, if there is neither a President nor Vice President because of death, resignation, removal from office, inability, or failure to qualify, the Speaker shall “act as President.” If there is no Speaker, or if the Speaker fails to qualify as Acting President, the President pro tempore succeeds and shall “act as President.” The detailed statute seemingly addressed the various possibilities of vacancy and succession. Thus, if the Speaker and the President pro tempore are not available or decide that they do not want to serve as President, the cabinet officials serve in the following order: Secretary of State, Secretary of the Treasury, Secretary of War, Attorney General, Postmaster General, Secretary of the Navy, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor. In every instance, whether Speaker, President pro tempore, or cabinet officer, the person serving as Acting President must be “eligible to the office of President under the Constitution.” In addition, the cabinet officer must have been appointed “by and with the advice and consent of the Senate” and must not be “under impeachment in the House of Representatives at the time the powers and duties of the office of President devolve upon them.” The 1947 statute is regularly amended to reflect new cabinet-level departments of change of title, such as the change from Secretary of War to Secretary of Defense.
The 20th Amendment, ratified in 1933, addressed several problems that had undercut the efficiency and continuity of the federal government. The Amendment set forth dates when congressional and presidential terms begin and end, what happens if the President-elect dies before his term begins or if no President or Vice President has qualified and what happens if a presidential or vice presidential candidate dies under certain contingencies. The overall effect of the Amendment’s various parts was to slightly increase the power of the Presidency and to improve the provisions for filling presidential vacancies under particular circumstances.
Section 1 provides that the terms of the President and Vice President begin and end at noon on January 20, and those of Senators and Representatives begin and end on January 3. Prior to this Amendment, all terms began and ended on March 4. Section 2 requires Congress to assemble on January 3 each year.
The amendatory changes improved the continuity of the two branches of government. Previously, some four months passed between the popular vote for the President and the Vice President and inauguration. This lengthy interim period created a long lame duck session before the White House changed hands. President Franklin D. Roosevelt and the 73rd Congress were the last to take office before the adoption of the 20th Amendment. Historically, as we have noted, the President had taken office on March 4, and the first regular session of Congress began in December, some 13 months after its election. As a consequence, every 20th Century President, including Roosevelt, had called Congress into special session to avoid the long delay. It is been observed, however, the adoption of the Amendment, which cut the time between election and inauguration from four months to about ten and one-half weeks, is too short a time for the transition period for the President-elect to select appointees for approximately 3,000 employees—roughly 40 per day. The change in congressional terms produced corrective measures.
The 25th Amendment addresses issues and questions stemming from vacancies in the vice presidency and presidential disability. The problems that stirred Congress to set in motion legislation that became the 25th Amendment had confronted the nation throughout American history. Various Presidents had suffered from disabilities that affected their ability to perform the duties and responsibilities of the Office of the Presidency. But there was no transfer of power to the Vice President in those instances because of the Constitution’s silence on the subject of presidential disability.
Article 2, Section 1, Clause 6 of the Constitution stated that in the case of the President’s “inability” to carry out the duties and powers of his office, that “the Same shall devolve on the Vice President.” But that constitutional provision did not supply guidance on the meaning of inability, the status of a Vice President in that instance and, critically, who possessed the authority to determine the beginning and ending of an inability. The Constitution, moreover, made no provision for filling a vacancy in the vice presidency when a Vice President either succeeded to the Presidency, died in office or resigned. And yet that was a problem with which the United States had grappled across the decades. Between 1841 and 1967, there had been a vacancy in the vice presidency on 16 occasions, which left the office unoccupied for an aggregate total of 37 years—roughly 25 percent of the nation’s history.
The assassination of President John F. Kennedy in 1963 forced Congress to resolve the constitutional uncertainties surrounding presidential death and disability. Lyndon Johnson’s ascension to the Presidency not only created a vacancy in the vice presidency, but spurred Americans to focus on the unanswered questions of succession, particularly because President Kennedy might have lingered in a state of incapacity for a lengthy period. The provisions of the Succession Act of 1947 and the age-related realities of statutory successors seemed to place the United States in a tenuous, if untenable situation. The next in-line lawmakers were Speaker of the House John McCormick and President pro tempore Carl Hayden, who were 72 and 86 years old, respectively. Senator Birch Bayh initiated the discussion and became the driving force to address the problems of disability and succession. He worked from a backdrop of long-standing presidential disabilities: Garfield’s long incapacitation after being shot; the months-long illness of Wilson following a stroke, and Eisenhower’s heart attack in 1955 and stroke in 1957. The 25th Amendment was ratified on February 20, 1967. It was supported by every state except South Carolina, Georgia and North Dakota.
The 25th Amendment provides a mechanism for filling the office of vice president and a procedure for dealing with issues of presidential disability. Section I provides that in the case of removal of the President by death, resignation or impeachment, “the Vice President shall be President.” In the event of 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 Amendment’s resolution of issues surrounding presidential disability delivered a remedy that struck lawmakers as reasonable. Whenever a President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties “shall be discharged by the Vice President as Acting President.”
Section 4 addresses the tricky issue of making judgments about the capacity of the President to carry out the duties of the office. In that rare situation when the Vice President and a majority of “either the principal officers of the executive departments or of such other body as Congress may by law provide,” transmit to the President pro tempore and the House Speaker their written declaration that the President is unable to discharge the powers and duties of the office as Acting President.” If and when the President transmits to the President pro tempore and the House Speaker that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department of of such other body as Congress may by law provide, transmit within four days to the President pro tempore and the House Speaker their written declaration that the President is unable to discharge his official powers and duties. At that point, Congress shall decide the issue by assembling with 48 hours if not already in session. If Congress determines by a two-thirds vote of each house that the President is unable to discharge his official duties and powers, the Vice President shall continue to discharge those duties and powers as Acting President. Otherwise, the President shall resume the powers and duties of his office.
The 25th Amendment was implemented in 1973 when Rep. Gerald R. Ford was nominated by President Richard Nixon, and approved by Congress, to succeed Vice President Spiro Agnew, who had resigned. It was invoked a year later when Nelson Rockefeller was nominated and approved to succeed Ford as Vice President, after Ford became President when Nixon resigned. The Amendment has never been implemented in the case of a presidential disability. When President Reagan was temporarily incapacitated while in surgery in 1985, he took steps to invoke Section 3, but in the end he refused to apply it, which prompted critics to complain that there was a gap in executive leadership that should not have existed.
In the course of American history, Vice Presidents have succeeded to the Presidency nine times, eight because of the death of a President and once because a President resigned. In 1974, Vice President Gerald Ford became President upon the resignation of President Richard Nixon. Succession by death occurred first in 1841 when John Tyler succeeded William Henry Harrison. There was some question of whether Tyler was Vice President “acting as President” or actually the President. Tyler decided to take the oath of office, fully authorized to exercise all powers and duties. Members of Congress referred to Tyler as “the President” and that precedent has been followed ever since.
Millard Fillmore became President when Zachary Taylor died of natural causes. The next turnovers resulted from the assassinations of Abraham Lincoln, James A. Garfield, and William McKinley, succeeded by Andrew Johnson, Chester A. Arthur, and Theodore Roosevelt, respectively. A fourth assassination occurred in November 1963, when Lyndon B. Johnson succeeded John F. Kennedy. In two other cases, a Vice President became President because of an incumbent’s death by natural causes: Calvin Coolidge replacing Warren G. Harding in 1923, and Harry Truman assuming the Presidency after the death of Franklin D. Roosevelt. Those cases involved death or resignation, not disability.
Of those Vice Presidents who succeeded to the Presidency, the most consequential have been Theodore Roosevelt, Harry Truman and Lyndon Johnson, each of whom won election to the Presidency in their own right. The others failed to establish a record of distinction, and left no significant legacy of lasting importance, a reflection, no doubt, of the absence of anything resembling an election mandate or a groundswell of public support to pursue an agenda apart from the Presidents that they succeeded. Roosevelt, at 42, was the youngest man ever to become President, before or since.
Ranked as a “near-great” President, Roosevelt counted as his own significant achievements, the construction of the Panama Canal; the conservation of natural resources; trust-busting and the denunciation of “malefactors of great wealth,” who cheated customers, unfairly crushed competitors and exploited workers; sending the U.S. Navy on a world cruise to promote the power of the American military and its intentions to become a first-rate actor in international affairs; the mediation of the Russo-Japanese War in 1905, which earned him the first Nobel Peace Prize awarded to an American, and some important pieces of domestic regulation and legislation. Roosevelt exerted all of his skills to persuade Congress to enact in 1905 the Hepburn Act, the first significant federal regulation of economic activity and paved the way to further expansion of federal regulatory powers. The statute aimed to empower the Interstate Commerce Commission (ICC) with its first rate-making authority to regulate the railroads. While it disappointed more ardent reformers it did, nevertheless, paved the way for a new regulatory era. His second important piece of domestic regulation was the Pure Food and Drug Act, which led to the creation of a federal agency to exercise oversight authority over food-processing plants. His third, and perhaps most important domestic act, was the creation of the Forest Service, which cemented his reputation as the first Environmental President.
Roosevelt was the first “media President,” owing his rapid rise to the White House to the public dimensions of American politics, which had come to be magnified after the Civil War by the proliferation of newspapers and illustrated magazines. And when he ascended to the “Bully Pulpit,” he preached and asserted in a way that no previous President had, the power of the Public Presidency. Indeed, his public persona, tied to his demonstrable courage in the Spanish American War, captured the imagination and affection of millions of Americans. He became President just a little over three years after his charge up San Juan Hill with the Rough Riders. He brought glamour, taste and talent to the Oval Office, and boasted a significant reputation as a prolific writer and a man of culture. An astute politician and cultivator of those who could create and maintain his image, he befriended journalists and set up the first Press Room in the White House. Politically, he was a master of trial balloons and planned, strategic leaks. In sum, his reputation as a bold, vigorous steward of the nation was achieved through his pioneering development of the most important public dimensions of the office. Afterward, no presidential aspirant or successful incumbent could operate outside those dimensions.