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The question of what it means for the President to be disabled reaches back to the Constitutional Convention in 1787. The framers envisioned that a presidential “inability” might occur, but they did not define the word or provide a way to declare its existence.
Fifty years ago tomorrow, the Constitution was amended to elaborate on the framers’ treatment of the issue. The 25th Amendment responded to presidential deaths and illnesses that exposed ambiguities and gaps in the Constitution’s original succession provision.
As we mark this momentous anniversary of the ratification of the amendment, which I helped draft, it is worth reflecting on why there was a need to change the nation’s founding document, and what we accomplished by doing so.
Eight Presidents died in office prior to the 25th Amendment’s ratification on Feb. 10, 1967 — four from illness and four by assassination. The first came in 1841 with President William Henry Harrison’s passing, which highlighted a constitutional ambiguity that called into question whether Vice President John Tyler would become President or serve as acting President.
Tyler asserted that he succeeded to the office of President for the rest of the term. Others said that to do so would prevent a President, in a case of a temporary inability, from resuming his powers and duties because under the succession provision, the procedures were the same for cases of death, resignation, removal and inability. Tyler prevailed, setting a precedent that would complicate future disability crises.
Tyler’s actions loomed over the aftermaths of the assassination attempt on President James Garfield in 1881 and the major stroke that President Woodrow Wilson suffered in 1919. Both Presidents were severely impaired — Garfield for more than two months until his death and Wilson for perhaps as long as 19 months.
But neither stepped aside or was removed from the discharge of their powers and duties, in part because Tyler’s precedent suggested that their vice presidents might become President for the remainder of the term, regardless of whether they recovered from their disabilities.
Additionally, the lack of constitutional procedures for declaring the President disabled likely made the vice presidents especially hesitant to assume the President’s powers and duties.
In the wake of the Kennedy assassination in 1963, members of Congress were shaken to action by the possibility that Kennedy could have been incapacitated by the shooting, essentially repeating the Garfield and Wilson episodes. Those situations were troubling enough, but the Cold War and the increased prominence of the United States in the world had made able presidential leadership indispensable.
The 25th Amendment was an extraordinary achievement thanks to the leadership of Sen. Birch Bayh of Indiana and Rep. Emanuel Celler of New York and the thoughtful contributions of members Congress from both parties. The American Bar Association and a special conference it convened, of which I was a member, provided support in crafting the amendment and then supporting its adoption.
The amendment made clear that when the President dies, resigns or is removed, the vice president becomes President for the rest of the President’s term. And when the President is disabled, the amendment is clear that the vice president serves as acting President only for the duration of the inability.
The President can declare his own inability and resume his powers and duties when he believes he is able again. Where the President cannot make or communicate a decision as to his capacity, the amendment authorizes the vice president and a majority of the cabinet to declare the President disabled.
If the President disagrees with that determination, Congress must resolve the issue in 21 days. The President is allowed to return to his powers and duties unless two-thirds of both houses of Congress agree with the determination of the vice president and cabinet.
Finally, the amendment lets the President fill a vacancy in the vice presidency with approval from a majority of both houses of Congress.
There’s this important final detail: “Inability” remains undefined in the Constitution. The 25th Amendment states that its procedures apply when the President is “unable to discharge the powers and duties” of the office. The drafters of the amendment intended it to cover physical and mental inability, temporary or permanent, as well as events where the President is out of communication, such as kidnappings and technological failures.
But they did not give a specific definition in order to provide flexibility to the constitutional decision makers.
Feerick teaches a clinical course on presidential succession at Fordham Law School, where he is a full-time professor and former dean.