In November 1963, US President John F. Kennedy was tragically assassinated by a sniper. His death renewed questions about presidential succession and removal for incapacitation. What if both the president and vice president were killed at the same time? What if a president was seriously wounded and unable to handle the rigors of office but not killed outright? The 25th Amendment was crafted to clarify both areas of questioning. It formalized the order of presidential succession and created a plan for removing a president who was still alive but was incapacitated. Since its ratification in 1967, the 25th Amendment has never been invoked but stands ready if a tragedy renders it necessary.
Setting the Stage: The Assassination of James Garfield
On July 2, 1881, US President James Garfield was shot twice in the back by a mentally ill man who felt that his political support should merit him a federal job. Garfield received quick medical treatment, but it involved crude methods and unwashed hands. An early X-ray machine was given a cursory attempt to find the bullets, but one was hidden by the metal coils of the mattress upon which Garfield was laying. The president recovered a bit after receiving morphine for his pain and managed to attend a Cabinet meeting. Unfortunately, Garfield’s condition steadily worsened beginning on July 23.
Hoping that a better climate would help heal the president, Garfield was placed on a train to Long Branch, New Jersey. Volunteers helped extend the railroad track to the shore, and an anxious public waited to see how the president fared. Sadly, Garfield passed away thirteen days later. He was succeeded by Vice President Chester A. Arthur, who continued with Garfield’s initial plan to replace the spoils system with a meritocracy as part of civil service reform. But, during the month-and-a-half of Garfield’s bedridden suffering, did the United States truly have a president at all?
Setting the Stage: The Incapacitation of Woodrow Wilson
A second bout of presidential incapacitation occurred less than forty years later. US President Woodrow Wilson was in a state of distress in 1919, trying to pass the Treaty of Versailles and its requisite League of Nations through Senate ratification by appealing to the American public. Wilson barnstormed the country and gave many speeches, hoping to hype up enough citizens that senators would not reject his treaty. On the evening of September 25, 1919, after giving a speech in Pueblo, Colorado, Wilson was discovered having suffered a serious stroke. The speaking tour was canceled, and the president was rushed back to the White House.
Controversially, the president’s condition was kept secret, especially from the public. Days later, the president suffered a second stroke, which rendered him almost paralyzed. Months later, the commander-in-chief was still barely functioning, and the press was beginning to report on Wilson’s suspicious condition. The Senate had rejected the Treaty of Versailles, undoubtedly worsening Wilson’s resolve, and the Democratic Party chose a different nominee in 1920. Less than three years after the end of his presidency, Wilson passed away. During his final year and a half in office, who had been making presidential decisions?
1963: The Assassination of John F. Kennedy
About forty years after Wilson’s death, US President John F. Kennedy was felled by a sniper’s bullet in Dallas, Texas. Although Kennedy’s death was instantaneous, the rapid pace of Cold War automation and mechanization meant that policymakers wanted plans in place in the event that a president was incapacitated. A lack of a succession plan meant that enemies of the United States might have a window of opportunity within which to cause great chaos. Fortunately, the Soviet Union did not attempt to take advantage of the situation and sent condolences to Kennedy’s replacement, Vice President Lyndon B. Johnson.
Johnson took the oath of office swiftly after Kennedy’s death and ensured that it occurred before cameras to assure the public that there was a commander-in-chief and chief executive. Congress felt that the time was ripe to work on a plan of presidential succession, especially since Kennedy’s predecessor, Dwight D. Eisenhower, had experienced significant bouts of illness while president. President Johnson supported the proposal of an amendment regarding presidential succession, and Congress began working on it shortly after Johnson’s inauguration to a full presidential term in January 1965.
1965-67: The 25th Amendment Crafted and Ratified
The crafting of the 25th Amendment took only a few months. Part of the amendment, particularly Section 1, merely formalized precedents that had occurred for over a century. Although vice presidents had been replacing deceased presidents since 1841, this was not actually specified in the Constitution itself. The 25th Amendment finally did so, preventing unexpected action by Congress or the Cabinet to install someone other than the vice president to replace a deceased chief executive. One implication of the amendment was that the government should be aware of the president’s health, which had begun with Eisenhower a decade earlier.
In July 1965, the amendment was accepted by both chambers of Congress and sent to the states for ratification. Nebraska was the first state to ratify the amendment, and the thirty-eighth necessary state—Nevada—ratified it on February 10, 1967. Having cleared the three-quarter ratio of states needed for ratification, the 25th Amendment became part of the Constitution on February 23. President Johnson heralded the amendment, which detailed how a new president could appoint a vice president. Johnson himself had served out the 14-month remainder of Kennedy’s term without his own vice president.
Order of Presidential Succession
Perhaps contrary to popular belief, the 25th Amendment did not actually create the order of presidential succession. This had been done with the Presidential Succession Act of 1947, but the 25th Amendment gave it additional weight and protection from last-minute changes. After the US vice president, succession to the presidency goes to the Speaker of the House of Representatives, then the President Pro Tempore of the Senate, and then through the Cabinet secretaries in order of the creation of those Cabinet departments. The eighteenth and final member of the order of presidential succession is the Secretary of Homeland Security, with the Department of Homeland Security established in 2002.
Presidential succession has been invoked four times since the passage of the 25th Amendment, with presidents briefly giving up commander-in-chief powers to their respective vice presidents during medical procedures. The president formally cedes power in the form of a letter and then retakes it with another letter when his faculties return. With most presidential succession falling to the vice president, Section 2 of the 25th Amendment states how a new vice president is chosen in the event that the current vice president cannot complete their term: the president appoints one, who must be confirmed by a simple majority of both chambers of Congress. All other presidential appointments only require Senate confirmation.
Role of Designated Survivor
The order of presidential succession covers eighteen individuals… but could all eighteen be incapacitated in the same catastrophe? During the Cold War, this became a real possibility due to the horrors of nuclear warfare. On a smaller scale, there was the possibility that a large terrorist attack or insurrection could incapacitate the president, his Cabinet (which includes the vice president), and congressional leadership. To prevent the entire line of presidential succession from being at risk during major political events like the annual State of the Union Address, a designated survivor is chosen from among the Cabinet secretaries.
Begun in the 1950s but only formally recognized since the 1980s, the role of designated survivor ensures continuity of government in the event of a disaster. The designated survivor, sometimes along with some senior members of Congress, is kept in a separate—and hidden—location away from the major political event. Should disaster strike, the powers of the presidency will automatically transfer, and the nation will suffer less chaos. On a more routine basis, the line of presidential succession is protected by keeping large numbers of these eighteen individuals from traveling together, especially the president and the vice president. Even if disaster strikes, most of the line of presidential succession will not be harmed.
Removal of an Incapacitated President
The most novel portion of the 25th Amendment was its provision for presidential incapacitation instead of death. Section 4 of the amendment states that the vice president and a majority of the Cabinet may remove the president by declaring, in writing, to the Speaker of the House and the President Pro Tempore of the Senate that the president is unable to fulfill the duties of their office. Should the president disagree and state to those same congressional leaders that they are fit to lead, Congress must convene within 48 hours to settle the dispute. After convening, Congress has twenty-one days of the receipt of the president’s declaration of fitness to render a decision.
If, within the twenty-one days, Congress decides by a two-thirds majority of each chamber that the president is unfit to retain office, the vice president will remain acting president until the next election. Section 4 of the 25th Amendment has never been invoked, but there are historical examples of chief executives who had acute mental illness. King George III of England, who fought against America during the Revolutionary War, was mentally unfit to rule during his last decade, leaving his son, King George IV, to act as prince regent. Some clinicians consider multiple US presidents to have suffered from substantial mental illness, including Lyndon B. Johnson and Richard Nixon, while still in office.
2021: January 6 Leads Some to Invoke the 25th
Barring a severe mental breakdown, it would likely be difficult for the vice president and Cabinet to decide when a president’s mental state passed the invisible border into unfitness for office. This likely subjective nature renders invoking Section 4 of the 25th Amendment controversial: when does one become “unfit” for high office? Would Congress expect the vice president and allied members of the Cabinet to provide medical evidence of their assertion of unfitness? Given medical privacy laws, how would this evidence be legally obtained? As Section 4 has never been invoked, nobody knows these answers, and such a legal battle would likely end up at the US Supreme Court.
In a real-life controversial maneuver, some members of the Cabinet of president Donald Trump allegedly considered invoking Section 4 in the hours after the January 6 storming of the US Capitol. This would have been more rooted in the belief that Trump committed insurrection by encouraging the rioters on January 6, 2021 rather than actual mental illness. However, even if committing insurrection or treason, could Trump have been considered “unable to discharge the powers and duties of his office”? Some would consider the invocation of Section 4 over illegal presidential behavior to be unconstitutional, regardless of noble intent.
Increasing Importance of the 25th: Growing Gerontocracy
While many may feel that it is very unlikely for a US president to succumb to serious illness, given their elite medical care and decades of hard work and experience in high-stress positions, the increasing age of American politicians may negate these advantages. Famously, the two most recent US presidents are the two oldest in history. Both Donald Trump and Joe Biden have been accused of declining mental health, particularly in regard to dementia. Leading members of both major political parties are often similarly aged, which can have real effects on policymaking due to the role of the seniority system in most legislatures.
If Americans continue to elect US presidents in their seventies, it will remain statistically more likely that a commander-in-chief will become incapacitated due to illness or injury. This is not unlikely, given the aging of the national population as a whole and the fact that older voters have proportionally greater turnout than younger voters. It is also likely that fewer politicians will pursue a traditional retirement, as a majority of Baby Boomers report feeling insecure about their financial ability to stop working. Across all industries, including government, there may be greater incidences of people working beyond their physical and mental abilities over the next several decades.
Debate Over the 25th: Is It Effective?
Due to the pre-existence of the Presidential Succession Act, references to the 25th Amendment typically mean Section 4 of the amendment: replacing a living but unfit-for-service president. How likely would Section 4 work as intended in the event of a crisis? Critics worry that it would be almost impossible for a vice president and Cabinet to objectively take power from an unfit president. Presidents largely have the capacity to remove appointed executives, including Cabinet secretaries, at will.
The US Supreme Court decision in Myers v. United States (1927), under the leadership of Chief Justice (and former US president) William Howard Taft, ruled that presidents can fire executives at will. Combined with the fact that these executives are appointed by the president in the first place and very rarely are held over from previous administrations, it is unlikely that any Cabinet secretary would show any disloyalty. The vice president and a majority of Cabinet members would have to act swiftly and secretly to depose an unfit president, which is unlikely given the president’s control of the White House staff. At any suggestion of invoking Section 4 of the 25th Amendment, the president is likely to dismiss all suspected Cabinet secretaries.
