The gaps in the original Constitution
The original text of the Constitution said that if the president was removed, died, resigned or was “unable to discharge the powers and duties” of the office, those powers “shall devolve on the Vice President.” It did not say who decided that a president was unable to serve, whether a vice president in that situation became president or merely acted as president, or how a vacant vice presidency should be filled. Congress passed laws on the order of succession beyond the vice president, but the central questions were left open.
In practice, the country had improvised. When John Tyler succeeded William Henry Harrison in 1841, he insisted that he was president and not simply an acting one, and later vice presidents followed his precedent. But the question of disability was far harder. There was no procedure that allowed a president to hand over power temporarily, and no procedure for anyone else to say that he could not do the job.
Problems that history had shown
Several episodes gave the issue urgency.
- James Garfield was shot in July 1881 and lived for about eleven weeks. For much of that time he was too ill to do his job, yet no one believed there was a safe way for Vice President Chester Arthur to take over, partly because of fears about the legality of doing so.
- Woodrow Wilson suffered a severe stroke in October 1919. For months, his wife and a small circle of advisers controlled access to him while the public was given limited information.
- Dwight Eisenhower had a heart attack in 1955, an operation in 1956 and a stroke in 1957. He reached private agreements with Vice President Richard Nixon about what to do if he were disabled, but these had no legal force.
- The assassination of John Kennedy in November 1963 made Lyndon Johnson president and left the vice presidency empty. For the next fourteen months or so the next person in line was the Speaker of the House, John McCormack, who was in his seventies, and after him the president pro tempore of the Senate, Carl Hayden, who was even older. Johnson also had a heart attack in 1955, which made the point obvious.
There had been 16 vacancies in the vice presidency over American history, either because the vice president had died, resigned or succeeded to the presidency. Many of them lasted for most of a presidential term.
The amendment in Congress
Senator Birch Bayh of Indiana led the effort in the Senate, working with a number of members of the House and with the American Bar Association, which had studied the problem. Congress approved a proposed amendment in July 1965, and it went to the states. Ratification was completed on February 10, 1967, when the legislature of Nevada became the 38th state to approve. That is the number needed, three-quarters of the then fifty states, to put the amendment into force. It became the 25th Amendment, one of several constitutional changes of the mid-1960s, alongside the 24th Amendment on poll taxes, ratified in 1964.
What the four sections do
Section 1 settles the Tyler question. If the president is removed, dies or resigns, the vice president becomes president, not merely an acting one.
Section 2 deals with a vacant vice presidency. The president nominates a new vice president, who takes office after confirmation by a majority vote of both houses of Congress.
Section 3 allows a president to declare in writing that he is unable to discharge the duties of the office. The vice president then serves as acting president until the president declares he is ready to resume.
Section 4 covers a president who cannot or will not declare his own incapacity. The vice president and a majority of the cabinet, or of another body Congress may designate, can send a written declaration to the leaders of Congress, and the vice president then becomes acting president. If the president disputes this, the matter goes to Congress, where a two-thirds vote in both houses is needed to keep the vice president in charge. Section 4 has never been completed in the form of an actual transfer of power.
How it has been used
The amendment’s second section was soon needed. In October 1973 Vice President Spiro Agnew resigned amid a criminal investigation, and President Richard Nixon nominated Gerald Ford, who was confirmed by Congress and took office in December. Then Nixon resigned in August 1974, and Ford became president. Ford nominated Nelson Rockefeller as vice president, and Rockefeller was confirmed in December 1974. For the first time, the country had both a president and a vice president who had not been elected to those offices on a national ticket.
Section 3 has been used a handful of times for short periods, mainly when a president was under anesthesia for medical procedures. Ronald Reagan did so in July 1985, George W. Bush did so in 2002 and 2007, and Joe Biden did in 2021. In each case the vice president served as acting president for a few hours.
Questions that remain
The amendment left some points unclear. It does not define “unable,” and it leaves open how a cabinet should weigh medical advice against politics. Section 4 has been discussed at moments of political or health concern, but it has never been put into effect. Scholars also point out that the vice presidency, once treated as an afterthought, has become more consequential partly because the amendment makes it so much more central to continuity. Its ratification in 1967, a year dominated by Vietnam and urban unrest, was a quiet act of repair on the structure of government, one that has proven important in the decades since.