CRS Report for Congress Received through the CRS Web

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1 CRS Report for Congress Received rough e CRS Web Order Code RS20260 July 12, 1999 Presidential Disability: An Overview Thomas H. Neale Analyst in American National Government Government and Finance Division Summary In e original document, Article II, section 1, clause 6 of e Constitution provided at, in e event of e President s Inability to discharge e Powers and Duties of his office, e Same shall devolve on e Vice President. This language was superseded by e 25 Amendment to e Constitution, ratified in Alough ere were several instances of severe presidential disability between 1789 and 1967, no Vice President sought to assume e chief executive s powers and duties during is period. Sections 3 and 4 of e 25 Amendment currently govern cases of presidential disability. Under section 3, if e President declares (in a written declaration to e Speaker of e House of Representatives and e President pro tempore of e Senate) at he is disabled for any reason, e Vice President assumes his powers and duties as Acting President. Section 4 provides for cases in which e President may not be able to transmit a disability declaration. In ese circumstances, e Vice President and e cabinet or such oer body as Congress may by law provide (a disability review body) can, by majority vote, declare e President to be disabled. It also empowers e President to declare his disability ended, again by written declaration, and resume his powers and duties. If, however, e Vice President and a majority of eier e cabinet or a disability review body, rule oerwise, en Congress decides e issue. A vote of two-irds of bo houses wiin 21 days is required to determine e President to be disabled and continue e disability; oerwise, he resumes his powers and duties. Neier section 3 nor section 4 has been invoked since e amendment was ratified. This report will be updated if events warrant. For information on sections 1 and 2 of e 25 Amendment, which provide for presidential succession, consult Presidential and Vice Presidential Succession, CRS Report GOV. Constitutional Provisions: The Constitution s original provisions governing presidential disability or inability were inserted in e document late in e proceedings of e Philadelphia Convention of 1787, where e delegates approved e formula at appears in Article II, section 1: Congressional Research Service The Library of Congress

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3 CRS-2 In Case of e Removal of e President from Office, or of his Dea, Resignation, or Inability to discharge e Powers and Duties of e said Office, e Same shall devolve on e Vice President, and e Congress may by Law provide for e Case of Removal, Dea, Resignation or Inability, bo of e President and Vice President, declaring what Officer shall en act as President, and such Officer shall act accordingly, until e Disability be removed, or a President shall be elected [emphases added]. Constitutional historians note at e clause does not define disability or differentiate between it and inability, alough contemporary dictionaries characterized e former as 1 a complete lack of power, and e latter as lack of ability to do a certain ing. Furer, while specifying who acts as President in e event of presidential disability (e Vice President), e clause provides no guidance on how it would be invoked, by whom, or for what leng of time, or on how a disability could be terminated or rescinded. 2 The ambiguities inherent in e disability section may have contributed to its dormancy over e long period at elapsed between adoption of e Constitution and ratification of e 25 Amendment. During ese 178 years, eight Presidents died in office and were succeeded by eir Vice Presidents wiout serious incident, notwistanding controversy as to wheer e Vice President acted as President, or became e President 3 under such circumstances. In at same period, however, a number of Presidents suffered from disabling illnesses for varying periods, but no Vice President ever became Acting President during any one of ese episodes. For instance, President George Washington was disabled for a mon in 1790 by a near-fatal case of pneumonia. James A. Garfield lingered for 79 days after being shot by an assassin in Before Garfield s dea, various plans were suggested for Vice President Chester A. Arur to assume e powers and duties of e presidency, but none progressed beyond e talking stage. In 1893, Grover Cleveland secretly underwent two cancer surgeries performed on a yacht cruising Long Island Sound, and subsequently spent two mons recuperating in Massachusetts. Presidential disabilities of e 20 century are perhaps better known. On October 2, 1919, President Woodrow Wilson suffered a stroke from which he never fully recovered during e remainder of his term. The gravity of his illness was concealed from e press and public, and access to e President was strictly controlled. Vice President Thomas Marshall was excluded from political or executive duties roughout e period, and Secretary of State James Lansing was forced to resign when Wilson learned at he had 4 convened e cabinet informally to deal wi pressing questions. Alough Wilson s heal improved, several measures were introduced in e 66 Congress providing for a 1 John D. Feerick, From Failing Hands: The Story of Presidential Succession (New York: Fordham University Press, 1965), pp. 44, Ru C. Silva, Presidential Succession (New York: Greenwood Press, 1968 (c. 1961)), pp For information on precedents established by e first vice presidential succession, see U.S. Library of Congress, Congressional Research Service, Presidential and Vice Presidential Succession, by Thomas H. Neale, CRS Report GOV (Washington, Aug. 21, 1998). 4 Michael Nelson and Margaret Jane Wyszomirski, Removal of e President, in Guide to e Presidency, vol. 1 (Washington: Congressional Quarterly Inc., 1996), pp

4 CRS-3 disability declaration, while some argued at e Supreme Court should issue a writ of mandamus, directing e Vice President to act as President. Grave doubts as to e 5 constitutionality of such measures deterred any concrete action, however. Some historians assert at President Franklin D. Roosevelt was increasingly incapacitated by cardiovascular disease in e last years of his presidency, but, as wi Wilson, is 6 knowledge was suppressed due to wartime conditions. Finally, President Dwight Eisenhower was incapacitated to some degree on ree occasions: he was hospitalized for seven weeks in 1955, following a heart attack; in 1956, he underwent surgery to remove a benign intestinal obstruction; and, finally, in 1957, he suffered a mild stroke, but returned 7 to work in less an a week. To deal wi ese instances, Eisenhower reached an informal agreement wi Vice President Nixon, under which e latter conducted most cabinet meetings and routine executive business during e chief executive s illness, but deferred to Eisenhower on substantive policy questions. 8 The 25 Amendment: Conception, Passage, and Ratification Following e dea of President Roosevelt in 1945, e question of presidential succession was revisited, leading to e Presidential Succession Act of 1947 (61 Stat. 380), which inserted e Speaker of e House and e President pro tempore of e Senate into e line of succession after e Vice President, but ahead of e cabinet. President Eisenhower s illnesses stimulated furer interest in e disability question, but it was e shocking assassination of President John F. Kennedy in 1963 at provided e catalyst for congressional action. Following e President s dea, e nation was confronted wi a lengy vacancy in e vice presidency and concerns over e heal of 9 e new chief executive and his potential successors. In is context, Senator Birch Bayh, Chairman of e Subcommittee on Constitutional Amendments of e Senate Judiciary Committee, sought to remedy bo e succession and e disability questions wi a constitutional amendment, S.J. Res. 1, introduced in e 89 Congress on January 6, The measure, which enjoyed bipartisan support, was reported favorably by e Senate Subcommittee on Constitutional Amendments on February 1, 1965, and by e full Judiciary Committee on February 10. The primary objection in Senate floor debate concerned its detailed procedures for resolving presidential disability disputes. Some Senators questioned e wisdom of including such a level of detail wiin e amendment, preferring statutes at would be auorized by e amendment. Supporters of e Bayh 5 Silva, Presidential Succession, pp Kenne R. Crispell and Carlos F. Gomez, Hidden Illness in e White House (Durham, NC: Duke University Press, 1988), pp , Alough Roosevelt suffered from cardiovascular disease, e cause of dea was cerebral hemorrhage. 7 Feerick, The Twenty-Fif Amendment, pp Ibid. 9 The vice presidency was vacant for 14 mons following e Kennedy assassination. Vice President Lyndon B. Johnson had suffered a heart attack in 1955; House Speaker John W. McCormack and Senate President pro tempore Carl T. Hayden were, respectively, 71 and 86 years old.

5 CRS-4 proposal prevailed, and e resolution was adopted on February 19, wi only minor technical amendments, by a vote of 72 to The House of Representatives began consideration of its version, H.J. Res. 1, wi hearings before e full Judiciary Committee in early Here, again, debate centered on procedures by which a President could be declared disabled, and on subsequent disputes at might arise as to wheer and when e period of disability was over. The committee reported its version of e amendment, incorporating changes indicated by ese concerns, on March 24. The House passed its own amended version of e proposal on April 13, voting to substitute it for e Senate form. Conferees required two mons to resolve differences between e competing amendments before e House approved e conference report by a voice vote on June 30, and e Senate concurred on July 6 by a 11 vote of 68 to 5. The proposed amendment was circulated to e states on July 7, Alough it enjoyed widespread support, state legislatures were not able to move rapidly, since many had adjourned for e year by e time e proposal was transmitted. Ratification by e necessary 38 states (ree-fours, as provided by e Constitution) required 19 mons, and was completed on February 10, 1967, at which time e 25 Amendment became an operative part of e Constitution. Sections 3 and 4: Procedures and Discussion Sections 3 and 4 of e 25 Amendment establish procedures concerning disability 12 of e President. Section 3 is activated when e President transmits a written declaration at he is unable to discharge e powers and duties of his office to e President pro tempore of e Senate and e Speaker of e House of Representatives, us providing for voluntary implementation of disability procedures. The Vice President en assumes ese powers and duties as Acting President, and continues to serve until e President transmits anoer declaration to e same congressional officers stating at he is no longer disabled. Alough noing prohibits e President from stating a time certain for recovery of his powers and duties, e language of e amendment appears to require a revocation message to end e disability. The most obvious use of section 3 would be in e event a President was being treated for a serious illness, or, undergoing any sort of medical procedure at required anesesia. In ese circumstances, e Vice President, as Acting President, would temporarily exercise all e chief executive s powers; he would, however, lose his position as President of e Senate, as provided in e Constitution. 13 Opinions differ as to wheer section 3 has ever been implemented. On July 13, 1985, 10 Constitutional Amendment on Presidency, Congressional Quarterly Almanac, 89 Congress, st 1 Session, 1965, vol. 21 (Washington: Congressional Quarterly Service, 1966), p Ibid., pp Section 1 of e Amendment provides at e Vice President becomes President when e chief executive is removed from office, dies, or resigns. Section 2 provides at when e Vice Presidency is vacant, e President nominates a replacement, subject to confirmation by a majority vote of bo houses of Congress. 13 The Senate shall chuse... a President pro tempore, in e absence of e Vice President, or when he shall exercise e Office of President of e United States. (Constitution, Article 1, section 3.

6 CRS-5 President Ronald Reagan informally transferred presidential powers to Vice President George Bush for several hours while he was undergoing cancer surgery. Alough his actions generally followed procedures established in section 3, he specifically refrained from invoking e 25 Amendment, declining to set a precedent at might bind future 14 Presidents. Some experts, however, insist at President Reagan did, in fact, trigger 15 section 3 by his actions, notwistanding his own assertions. Anoer unresolved question concerning is section is wheer it could be appropriately used to cover a political disability on e part of a President. Succession and disability scholar John D. Feerick notes at President Richard Nixon was urged to step aside under section 3 in 1973 and 1974, in order to devote his full attention to defending himself against e 16 Watergate-related charges at eventually led to his resignation. Section 4 is activated when eier e Vice President and a majority of e cabinet, or e Vice President and a majority of such oer body as Congress by law may provide (sometimes referred to as a disability review body), declare at e President is unable to discharge e powers and duties of his office. This constitutes contingent implementation of disability procedures, a process at could be initiated if e President were unable (or unwilling) to declare himself disabled. Section 4 furer provides at e President resumes office when he transmits, to e President pro tempore and e Speaker, a declaration at no disability exists. If, however, e Vice President and a majority of e Cabinet, or e Vice President and a majority of e disability review body (if one has been established by law), declare to e contrary wiin four days of e President s declaration, Congress must decide e issue. If it is not in session, it must reassemble wiin 48 hours to consider e question, and it must render a decision wiin 21 calendar days. Only if a two-irds majority of bo houses of Congress votes to certify at e President is disabled does e Vice President continue as Acting President; oerwise, e President resumes his powers and duties. Section 4 is intended, as one source puts it, to provide for a sick president who refuses or is unable to confront his disability. Put anoer way, is section was basically 17 framed to apply to a president who is disabled but unwilling to step aside. Anoer study suggests, it is e type of provision which eoretically might have been used in e 18 last mons of e Wilson and e Franklin D. Roosevelt presidencies. Several of its fine print provisions deserve comment. First, it should be noted at e Vice President is e indispensable actor in section 4: it cannot be invoked wiout his agreement. 14 Letter to e President Pro Tempore of e Senate and e Speaker of e House on e Discharge of e President s Powers and Duties During His Surgery, July 13, 1985, Public Papers of e Presidents of e United States, Ronald Reagan, 1985, Book II (Washington: GPO, 1988), p. 919; Kenne W. Thompson, Presidential Disability, Succession, and e Twenty-fif Amendment, in James P. Pfiffner and R. Gordon Hoxie, eds., The Presidency in Transition (New York: Center for e Study of e Presidency, 1989), pp Feerick, The Twenty Fif Amendment, pp. xvi-xvii. 16 Ibid., p White Burkett Miller Center, Commission on Presidential Disability and e 25 Amendment, Report of e Miller Center Commission on Presidential Disability and e Twenty-fif Amendment (Charlottesville, VA: The Center, 1988), p Thompson, Presidential Disability, Succession, and e Twenty-fif Amendment, p. 441.

7 CRS-6 Second, e amendment s wording, e principal officers of e executive departments or such oer body as Congress may by law provide refers in e former case to e cabinet, but only to ose members who are e heads of departments, us excluding such cabinetrank officials as e U.S. Trade Representative and e Ambassador to e United Nations. According to Feerick, e legislative history is unclear as to wheer acting department 19 heads were intended to participate in a disability decision. Third, e use of e construction eier/or when referring to e cabinet and e oer body strongly indicates at, if Congress were to establish such a body, it would supplant e cabinet for e purposes of invoking section 4. Finally, e language of e amendment clearly requires e approval of bo e Vice President and a majority of e cabinet, or, alternatively, e Vice President and e oer body, to declare a section 4 presidential disability. Oer points concern e disability review body itself: e form it would take (Feerick suggests at Congress could designate itself, expand or restrict membership of e cabinet, or 20 combine e cabinet wi oer officials); e legislative vehicle used to create one (eier a joint resolution or a bill, bo requiring presidential approval, since e body must be created by law ); and wheer it would be appropriate for Congress to establish one in advance of an anticipated disability. Section 4's complexity, and its potential for an involuntary finding of presidential disability, has troubled some observers:... during consideration of e 25 Amendment, 21 Congress considered a number of possible horror story scenarios. It can be argued at e section provides opportunities for political mischief by a disloyal Vice President and cabinet, or congressional usurpation of executive prerogatives. It can be furer suggested at Section 4, like e impeachment process, is so powerful, and so fraught wi constitutional and political implications, at it would never be used, except in e most compelling circumstances, since its invocation might well precipitate, ipso facto, a constitutional crisis. On e oer hand, Senator Bayh and oer crafters of e amendment included powerful checks to deter abuse: e President s ability to challenge a section 4 declaration of disability; e requirement of a timely decision by Congress; and, ultimately, e need for a two irds vote in bo houses to sustain a section 4 finding of disability by e Vice President and e cabinet or disability review body. As one study concluded, Because e Amendment deals wi unpredictable human frailties, it is not a perfect solution, but few exist in constitutional history. The task is to make e most of what e Amendment encompasses. Success depends on e good judgment and good sense of our leaders and e citizenry Feerick, The Twenty-Fif Amendment, pp Ibid., p Miller Center, Report of e Miller Center Commission, p Thompson, Presidential Disability, Succession and e Twenty-fif Amendment, p. 443.

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