This Legal Sidebar post is the third in a seven-part series that discusses the Twenty-Fifth Amendment to the Constitution. In an effort to ensure that the United States will always possess a functioning President and Vice President, the Twenty-Fifth Amendment seeks to promote the prompt, orderly, and democratic transfer of executive power. In particular, the Amendment establishes procedures for addressing presidential inability and vacancies that arise in the presidency or vice presidency. Because Congress may play a role in implementing the Twenty-Fifth Amendment, understanding the Amendment's history and drafting may assist Congress in its legislative activities.
This Sidebar post discusses the history of presidential and vice-presidential succession prior to the Twenty-Fifth Amendment's 1967 ratification. Other Sidebars in this series provide an overview of the Twenty-Fifth Amendment's procedures; discuss the history of the Presidential Succession Clause; and examine the Amendment's drafting in Congress, implementation, and unresolved issues. Additional information on this topic is available at the Constitution Annotated: Analysis and Interpretation of the U.S. Constitution and in several CRS reports.
Presidential and Vice-Presidential Vacancies Before the Twenty-Fifth Amendment's Ratification
From President George Washington's 1789 inauguration to the Twenty-Fifth Amendment's 1967 ratification, eight Presidents died while in office. (During this time, no President resigned or was removed from office as a result of impeachment proceedings.) In 1841, President William Henry Harrison became the first President to die in office when he succumbed to illness shortly after his inauguration. Vice President John Tyler took the presidential oath of office and claimed that he had succeeded to the presidency automatically for the remainder of Harrison's term by operation of Article II, Section 1, Clause 6. However, some of Tyler's contemporaries questioned whether Tyler had actually become the President or would merely exercise the President's power and duties as "Acting President" until a special election could fill the vacancy. After debating the issue, the House and Senate enacted a joint resolution addressing Tyler as the President. Tyler's actions established a historical precedent that subsequent Vice Presidents would follow for more than a century until the Twenty-Fifth Amendment formally incorporated this succession rule into the Constitution.
After Tyler succeeded to the presidency following Harrison's demise, seven other Presidents died in office before the Twenty-Fifth Amendment's ratification:
In addition to the eight presidential vacancies that resulted from the incumbent's death, the vice presidency was vacant 16 times for a total of more than 37 years before the Twenty-Fifth Amendment's ratification. These vacancies resulted from the Vice President's death, resignation, or succession to the presidency. Because the Presidential Succession Clause empowered Congress to provide by law only for simultaneous presidential and vice-presidential vacancies, it was unclear whether Congress could address sole vice-presidential vacancies by enacting ordinary legislation.
Presidential Inability Before the Twenty-Fifth Amendment's Ratification
Prior to the Twenty-Fifth Amendment's ratification, several Presidents became incapacitated for a significant period of time while leading the nation. These include James Madison, who "suffered from a severe fever in the summer of 1813"; James A. Garfield, who survived for 80 days after an assassin shot him; Woodrow Wilson, who suffered a stroke and was incapacitated for a significant part of his second term; and Dwight D. Eisenhower, who "suffered three major illnesses while in office." During these episodes of presidential inability, the Constitution lacked a clear mechanism by which the Vice President could declare the President disabled. Moreover, some commentators argued that if the Vice President assumed the President's powers and duties, then the President could not legally resume them upon recovery.
Significant uncertainty over the Presidential Succession Clause's operation surfaced in 1881 when President James A. Garfield was shot by an assassin but survived for 80 days before dying. Although many important national issues required attention during Garfield's inability, Vice President Chester A. Arthur declined to assume the presidency before Garfield's death in part because he and a majority of the Cabinet believed that such an action would permanently oust Garfield. For similar reasons, after President Woodrow Wilson suffered a stroke in 1919, Vice President Thomas R. Marshall refused to declare Wilson disabled and assume the powers and duties of the presidency. Instead, important national business went unaddressed. Wilson's wife, physician, and private secretary reportedly limited officials' access to the President during his illness, which was hidden from the public and lasted for many months of his second term. After recovering, President Wilson dismissed Secretary of State Robert Lansing for encouraging Vice President Marshall to serve as Acting President and for calling Cabinet meetings to address some executive branch business in Wilson's absence.
Beginning in the 1950s, some Presidents developed public, informal protocols for addressing presidential inability. For example, in 1958, citing Article II's Presidential Succession Clause, President Eisenhower and then-Vice President Richard Nixon agreed to procedures for temporarily transferring Eisenhower's presidential powers to Nixon if Eisenhower became disabled as a result of ongoing health issues. These procedures allowed the President to transfer his power voluntarily. However, if the President were unable to communicate with the Vice President, then the Vice President could assume the President's powers and duties as Acting President "after such consultation as seem[ed] to him appropriate under the circumstances." In either event, the President could resume his powers and duties at any time when he determined that he was able to do so. Presidents John F. Kennedy and Lyndon B. Johnson reached similar agreements with their potential successors before the Twenty-Fifth Amendment's ratification.
Questions about the legality and workability of such informal agreements prompted significant congressional interest in establishing formal procedures to address presidential inability. President Kennedy's 1963 assassination added urgency to these efforts, helping to motivate the Twenty-Fifth Amendment's proposal and ratification in the 1960s.
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Document ID: LSB11133