What Happens When a President Becomes Ill or Incapacitated While in Office?

What Happens When a President Becomes Ill or Incapacitated While in Office?

Illness can impact a president’s ability to conduct the duties of office, but for most of U.S. history, protocol for what happens when a president got sick was minimal.

The Founding Fathers anticipated the need for a line of succession, and the Constitution says the vice president becomes acting president if the elected one dies, resigns or became debilitated. But it left out critical details, including who has the power to declare the president unfit to serve, when and how the president should return to office, and if the vice president should continue as president for the rest of the term or until a replacement was found.

It took the assassination of John F. Kennedy for Congress to pass the 25th Amendment laying out a clear protocol with the 25th Amendment for what happens if the president or vice president resigns, becomes incapacitated or disabled, or dies.

The Line of Succession for President

Congress attempted to address the confusion over what happens if a president becomes unfit while in office with a series of three succession acts. The first Presidential Succession Act was passed in February 1792, and said the Majority Leader of the House of Representatives and the President Pro Tempore of the Senate were next in the line of succession.

The next succession act of 1886 replaced the leaders of the Senate and House of Representatives with the presidential cabinet in order of rank, meaning the Secretary of State followed the Vice President in the line of succession. Lawmakers argued they would have a better executive skillset: At the time, no president pro tempore had ever served as president, while six former secretaries of state had been elected to that office.

The line of succession changed again on July 18, 1947, when President Harry Truman signed the Presidential Succession Act. It restored the 1792 rules, but switched their order: Since 1947, the line of succession for president of the United States goes from the Vice President to the Speaker of the House, then the President Pro Tempore of the Senate.

The 25th Amendment

The passage of the 25th Amendment solidified the protocol for presidential succession. It was passed in the wake of the assassination of John F. Kennedy, when there was initial fear that Vice President Lyndon B. Johnson had also been injured. The 25th Amendment was signed into law by Johnson on February 23, 1967 and states, in part:

Section 1: If the President Dies or Resigns, the Vice President Becomes President

“In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”

Section 2: The President Can Nominate a New Vice President

“Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”

Section 3: If the President Is Ill, The Vice President Becomes Acting President

“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”

Section 4: If the President Is Declared Unfit to Serve, the Vice President Will Become Acting President

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”

The third section of the 25th amendment has only been invoked three times in history: During Ronald Reagan’s surgery for colon cancer in 1985 and for George W. Bush’s colonoscopies in 2002 and 2007.

Reagan’s staff considered invoking the fourth section of the 25th amendment when the president began acting strangely in the wake of the Iran-Contra Scandal, but his chief of staff ultimately decided against it. Reagan’s Alzheimer’s diagnosis after he left office has led historians to speculate that he may have been experiencing early symptoms of the disease while serving as president.

Long before the passage and application of the 25th amendment, numerous presidents dealt with illness or medical conditions—some openly, others in secret—while serving in office.

George Washington

The first president to fall seriously ill while in office was the nation's first president, George Washington. Two months into his first term, Washington underwent surgery for a tumor that required him to rest on his right side for six weeks. In his second year of office, Washington survived a bout of influenza that threatened his hearing and his sight, prompting him to write: “I have already had within less than a year, two severe attacks—the last worst than the first—a third more than probable will put me to sleep with my fathers; at what distance this may be I know not.”

Disease ran rampant in America’s early cities, and an outbreak of yellow fever in the summer of 1793 prompted Washington and the government to flee to the countryside. Washington survived, as he’d survive diphtheria, tuberculosis, smallpox, malaria, dysentery, quinsy, and carbuncle, along with many near-misses on the battlefield. He eventually died of a throat infection, but after he’d left office.

READ MORE: When the Yellow Fever Outbreak of 1793 Sent the Wealthy Fleeing Philadelphia

William Henry Harrison

William Henry Harrison became the shortest-serving president when he died just 34 days into taking office from pneumonia he contracted on inauguration day. He was the first president to die while in office, meaning there was no precedent for Vice President John Tyler’s rise to power.

While Tyler was initially given the title “Vice President Acting President” by Congress, he sought a more permanent job title. Tyler moved into the White House and had himself sworn in as president, even giving an Inaugural Address.

READ MORE: Did William Henry Harrison’s Inauguration Speech Kill Him?

Grover Cleveland

In 1893, Grover Cleveland needed surgery to remove a cancerous tumor in his mouth. To avoid the attention of the press, he had the surgery performed on his friend’s yacht in Long Island Sound. He had a quarter of his upper palate entirely removed, was fitted with an implant, and went back to work. The public was none the wiser.

Woodrow Wilson

Woodrow Wilson nearly died of the 1918 flu pandemic during sensitive negotiations with world leaders at the Paris Peace Talks. With the flu decimating civilians and soldiers in World War I—20 million people eventually died from the disease worldwide—Wilson’s doctor lied, telling the press the President had caught a cold from the rain in Paris.

Wilson’s illness depleted him, and aides became worried it was hindering the president's ability to negotiate. Ultimately, Wilson relinquished his demands on French leader Georges Clemenceau, accepting the demilitarization of the Rhineland and French occupation of it for at least 15 years. The resulting Treaty of Versailles was so harsh on Germany that it contributed to the rise of Adolf Hitler and the outbreak of World War II.

It wouldn’t be the last time a doctor lied about Wilson’s condition: In 1919, he suffered a series of strokes that prompted his cabinet to suggest the vice president take over. First Lady Edith Wilson and the president’s doctor, Cary Grayson, refused.

Franklin D. Roosevelt

The United States' longest-serving president, Franklin Delano Roosevelt, hid the severity of his polio from the American public, fearing he would be perceived as weak. He avoided using his wheelchair during appearances to “walk” with the aid of leg braces, a cane, and usually the arm of an advisor. The press was forbidden from taking pictures of him walking—an offense the Secret Service was tasked with preventing.

READ MORE: Franklin Roosevelt's Personal Polio Crusade

Dwight D. Eisenhower

During Dwight D. Eisenhower’s years in office, he suffered a heart attack, was diagnosed with and underwent surgery for Crohn’s disease, and had a stroke. Concerned he wouldn’t recover, Eisenhower wrote a confidential letter to his vice president, Richard M. Nixon, telling him what to do in the event he didn’t regain his faculties.

In it, he named Nixon as the person responsible for determining whether or not Eisenhower could perform his presidential duties. The letter was not legal, and Nixon took over the duties of president only momentarily, once in 1955 after the president’s heart attack and again during his 1956 surgery.

Ronald Reagan

The 25th Amendment was formally invoked for the first time on July 13, 1985, when President Ronald Reagan directed then-Vice President George H.W. Bush to perform his duties while he underwent surgery for colon cancer. Bush became acting president when Reagan was administered general anesthesia. After just under eight hours, Reagan notified the Senate that he was ready to resume his presidential duties.

George W. Bush

During his two-term presidency, George W. Bush invoked the 25th Amendment twice. On June 29, 2002, Bush invoked Section 3 of the 25th Amendment prior to going under anesthesia for a colonoscopy and briefly made Vice President Dick Cheney the acting president. He did the same again when he had another colonoscopy in 2007.


Contents

The current presidential order of succession was established by the Presidential Succession Act of 1947, as amended. [1] The order consists of Congressional officers followed by the members of the cabinet in the order of the establishment of each department, provided that each officer must satisfy the constitutional requirements for serving as president. [2] In the table, the absence of a number in the first column indicates that the incumbent is ineligible.

No. Office [3] Incumbent Party
1 Vice President Kamala Harris Democratic
2 Speaker of the House of Representatives Nancy Pelosi Democratic
3 President pro tempore of the Senate Patrick Leahy Democratic
4 Secretary of State Antony Blinken Democratic
5 Secretary of the Treasury Janet Yellen Democratic
6 Secretary of Defense Lloyd Austin Unknown
7 Attorney General Merrick Garland Unknown
8 Secretary of the Interior Deb Haaland Democratic
9 Secretary of Agriculture Tom Vilsack Democratic
10 Secretary of Commerce Gina Raimondo Democratic
11 Secretary of Labor Marty Walsh Democratic
12 Secretary of Health and Human Services Xavier Becerra Democratic
13 Secretary of Housing and Urban Development Marcia Fudge Democratic
14 Secretary of Transportation Pete Buttigieg Democratic
– [A] Secretary of Energy Jennifer Granholm Democratic
15 Secretary of Education Miguel Cardona Democratic
16 Secretary of Veterans Affairs Denis McDonough Democratic
– [A] Secretary of Homeland Security Alejandro Mayorkas Unknown

Presidential eligibility Edit

Article II, Section 1, Clause 5 of the Constitution sets three qualifications for holding the presidency: One must be a natural-born citizen of the United States, be at least 35 years of age and have been a resident in the United States for at least fourteen years. [4] [B]

Presidential succession Edit

The presidential line of succession is mentioned in four places in the Constitution:

    makes the vice president first in the line of succession and allows the Congress to provide by law for cases in which neither the president nor vice president can serve. [6]
  • The 12th Amendment provided that the vice president would also fill any vacancy of the presidency arising from failure of the House of Representatives to choose a president in a contingent election. [7]
  • The 20th Amendment, Section 3, supersedes the above 12th Amendment provision, by declaring that if the president-elect dies before his term begins, the vice president-elect becomes president on Inauguration Day and serves for the full term to which the president-elect was elected, and also that, if on Inauguration Day, a president has not been chosen or the president-elect does not qualify for the presidency, the vice president-elect acts as president until a president is chosen or the president-elect qualifies. It also authorizes Congress to provide for instances in which neither a president-elect nor a vice president-elect have qualified. [8]
  • The 25th Amendment, Section 1, clarifies Article II, Section 1, Clause 6, by stating unequivocally that the vice president is the direct successor of the president, and becomes president if the incumbent dies, resigns or is removed from office. It also, in sections 3 and 4, provides for situations where the president is temporarily disabled, such as if the president has a surgical procedure or becomes mentally unfit, establishing procedures whereby the vice president can become acting president. Additionally, in Section 2, the amendment provides a mechanism for intra-term vice presidential succession, establishing that a vice presidential vacancy will be filled by a president's nominee upon confirmation by a majority vote of both houses of Congress. [C] Previously, whenever a vice president had succeeded to the presidency or had died or resigned from office, the vice presidency remained vacant until the next presidential and vice presidential terms began there were 16 such vacancies prior to 1967. [10]

Act of 1792 Edit

The Presidential Succession Act of 1792 (Full text ) provided for succession after the president and vice president: first, the president pro tempore of the Senate, followed by the speaker of the House. [11] The statute provided that the presidential successor would serve in an acting capacity, holding office only until a new president could be elected. [12] A special election was to be held in November of the year in which dual vacancies occurred (unless the vacancies occurred after the first Wednesday in October, in which case the election would occur the following year or unless the vacancies occurred within the last year of the presidential term, in which case the next election would take place as regularly scheduled). The persons elected president and vice president in such a special election would have served a full four-year term beginning on March 4 of the next year. No such election ever took place. [13]

Various framers of the Constitution, such as James Madison, criticized the arrangement as being contrary to their intent. The decision to build the line of succession around those two officials was made after a long and contentious debate. In addition to the president pro tempore and the speaker, both the secretary of state and the chief justice of the Supreme Court were also suggested. [13] Including the secretary of state was unacceptable to most Federalists, who did not want the then secretary of state, Thomas Jefferson, who had become the leader of the opposition Democratic-Republicans, to follow the vice president in the succession, and many objected to including the chief justice due to separation of powers concerns. [6] [14]

Act of 1886 Edit

The Presidential Succession Act of 1886 (Full text ) established succession to include the members of the president's cabinet in the order of the establishment of the various departments, beginning with the Secretary of State, [D] and stipulated that any official discharging the powers and duties of the presidency must possess the constitutional qualifications to hold the office. [12] The president pro tempore and speaker were excluded from the new line, and the provision mandating a special presidential election when a double vacancy arose was also dropped. [13]

The need for increasing the number of presidential successors was abundantly clear to Congress, for twice within the span of four years it happened that there was no one in the presidential line of succession. In September 1881, when Chester A. Arthur succeeded to the presidency following James A. Garfield's death, there was no vice president, no president pro tempore of the Senate, and no speaker of the House of Representatives. [7] Then, in November 1885, Grover Cleveland faced a similar situation, following the death of Vice President Thomas A. Hendricks, as the Senate and the House had not convened yet to elect new officers. [15]

Act of 1947 Edit

The Presidential Succession Act of 1947 (Full text ), which was signed into law on July 18, 1947, [12] restored the speaker of the House and president pro tempore of the Senate to the line of succession—but in reverse-order from their 1792 positions—and placed them ahead of the members of the Cabinet, positioned, as before, in the order of the establishment of their department. [3] [E]

Placing the speaker and the president pro tempore (both elected officials) back in the succession and placing them ahead of cabinet members (all of whom are appointed by the president with the advice and consent of the Senate), was Harry S. Truman's idea. Personally conveyed to Congress in June 1945, two months after becoming president upon Franklin D. Roosevelt's death, the proposal reflected Truman's belief that the president should not have the power to appoint to office "the person who would be my immediate successor in the event of my own death or inability to act," and that the presidency should, whenever possible, "be filled by an elective officer." [12] [16]

Further amendments Edit

The 1947 Act has been modified several times, with changes being made as the face of the federal bureaucracy has changed over the ensuing years. Its most recent change came about in 2006, when the USA PATRIOT Improvement and Reauthorization Act added the Secretary of Homeland Security to the presidential line of succession. [17] [F]

Although the Presidential Succession Clause in Article II of the Constitution clearly provided for the vice president to take over the "powers and duties" of the presidency in the event of a president's removal, death, resignation, or inability, left unclear was whether the vice president became president of the United States or simply temporarily acted as president in a case of succession. [6] Some historians, including Edward Corwin and John D. Feerick, [19] have argued that the framers' intention was that the vice president would remain vice president while executing the powers and duties of the presidency until a new president could be elected. [20]

The hypothetical debate about whether the office or merely the powers of the office devolve upon a vice president who succeeds to the presidency between elections became an urgent constitutional issue in 1841, when President William Henry Harrison died in office, only 31 days into his term. Vice President John Tyler claimed a constitutional mandate to carry out the full powers and duties of the presidency, asserting he was the president and not merely a temporary acting president, by taking the presidential oath of office. [21]

Many around him—including John Quincy Adams, [19] [22] Henry Clay [23] and other members of Congress, [22] [23] along with Whig party leaders, [23] and even Tyler's own cabinet [22] [23] —believed that he was only acting as president and did not have the office itself. He was nicknamed "His Accidency" and excoriated as a usurper. [21] Nonetheless, Tyler adhered to his position, even returning, unopened, mail addressed to the "Acting President of the United States" sent by his detractors. [24] Tyler's view ultimately prevailed when the Senate voted to accept the title "President", [23] setting a precedent for an orderly transfer of presidential power following a president's death, [21] one that was subsequently written into the Constitution as section 1 of the Twenty-fifth Amendment. [20]

Even after the precedent regarding presidential succession due to the president's death was set, the part of the Presidential Succession Clause that provided for replacing a disabled president remained unclear. What constituted an "inability"? Who determined the existence of an inability? Did a vice president become president for the rest of the presidential term in the case of an inability or was the vice president merely "acting as President"? Due to this lack of clarity, later vice presidents were hesitant to assert any role in cases of presidential inability. [25] Two situations are noteworthy:

  • On July 2, 1881, President James A. Garfield was shot hit from behind by two bullets (one grazing his arm and the other lodging in his back). [26] The president wavered between life and death for 80 days after the shooting it was the first time that the nation as a whole experienced the uncertainties associated with a prolonged period of presidential inability. [7] Most disconcerting, especially for Garfield administration personnel and members of Congress, was the lack of constitutional guidance on how to handle the situation. No one was sure who, if anyone, should exercise presidential authority while the president was disabled many urged Vice President Chester A. Arthur to step up, but he declined, fearful of being labeled a usurper. Aware that he was in a delicate position and that his every action was placed under scrutiny, Arthur remained secluded in his New York City home for most of the summer. Members of the Garfield Cabinet conferred daily with the president's doctors and kept the vice president informed of significant developments on the president's condition. [26]
  • In October 1919, President Woodrow Wilson suffered a debilitating stroke. Nearly blind and partially paralyzed, he spent the final 17 months of his presidency sequestered in the White House. [27] Vice President Thomas R. Marshall, the cabinet, and the nation were kept in the dark over the severity of the president's illness for several months. Marshall was pointedly afraid to ask about Wilson's health, or to preside over cabinet meetings, fearful that he would be accused of "longing for his place". Though members of both parties in Congress pledged to support him if he asserted his claim to the presidency, Marshall declined to act, or to do anything that might seem ambitious or disloyal to Wilson. [28] At a time when the fight over joining the League of Nations was reaching a climax, and domestic issues such as strikes, unemployment, inflation and the threat of Communism were demanding action, the operations of the executive branch were once more hampered due to the fact that there was no constitutional basis for declaring that the president was unable to function. [29]

When President Dwight D. Eisenhower suffered a heart attack in September 1955, he and Vice President Richard Nixon developed an informal plan authorizing Nixon to assume some administrative duties during Eisenhower's recovery. Although it did not have the force of law, the plan helped to reassure the nation. The agreement also contained a provision whereby Eisenhower could declare his own inability and, if unable to do so, empowered Nixon, with appropriate consultation, to make the decision. [25] Had it been invoked, Nixon would have served as acting president until the president issued a declaration of his recovery. Moved forward as a consequence of President Kennedy's November 1963 assassination, this informal plan evolved into constitutional procedure a decade later through Sections 3 and 4 of the Twenty-fifth Amendment, which resolved the uncertainties surrounding presidential disability. [10]

Nine vice presidents have succeeded to the presidency intra-term, eight due to the president's death, and one due to the president's resignation from office. [7] [17]

Successor [30] Party [30] President Reason Date of succession [30] [31]
John Tyler Whig William Henry Harrison Death April 4, 1841 , 31 days into Harrison's presidency. [32]
Millard Fillmore Whig Zachary Taylor Death July 9, 1850 , 1 year, 4 months and 5 days into Taylor's presidency. [33]
Andrew Johnson National Union Abraham Lincoln Death April 15, 1865 , 4 years, 1 month and 11 days into Lincoln's presidency. [34]
Chester A. Arthur Republican James A. Garfield Death September 19, 1881 , 6 months and 15 days into Garfield's presidency. [35]
Theodore Roosevelt Republican William McKinley Death September 14, 1901 , 4 years, 6 months and 10 days into McKinley's presidency. [36]
Calvin Coolidge Republican Warren G. Harding Death August 2, 1923 , 2 years, 4 months and 29 days into Harding's presidency. [37]
Harry S. Truman Democratic Franklin D. Roosevelt Death April 12, 1945 , 12 years, 1 month and 8 days into Roosevelt's presidency. [38]
Lyndon B. Johnson Democratic John F. Kennedy Death November 22, 1963 , 2 years, 10 months and 2 days into Kennedy's presidency. [39]
Gerald Ford Republican Richard Nixon Resignation August 9, 1974 , 5 years, 6 months and 20 days into Nixon's presidency. [40]

Additionally, two vice presidents have temporarily assumed the powers and duties of the presidency as acting president, as authorized by Section 3 of the Twenty-fifth Amendment: George H. W. Bush did so once, on July 13, 1985, and Dick Cheney did so twice, on June 29, 2002 and July 21, 2007. [41] [42]

While several vice presidents have succeeded to the presidency upon the death or resignation of the president, and a number of them have died or resigned, the offices of president and vice president have never been simultaneously vacant [G] [H] thus no other officer in the presidential line of succession has ever been called upon to act as president. There was potential for such a double vacancy when John Wilkes Booth assassinated President Abraham Lincoln in 1865, as Vice President Andrew Johnson was also targeted (along with Secretary of State William Seward and possibly General Ulysses S. Grant) as part of Booth's plot to destabilize the Union government. [47] It again became a real possibility three years later, when, with the vice presidency vacant, Johnson as president was impeached by the House of Representatives and faced removal from office if convicted at trial in the Senate. President Johnson was acquitted by a one-vote margin. [48]

Ratification of the 25th Amendment, with its mechanism for filling an intra-term vice presidential vacancy, has made calling on the speaker, president pro tempore, or a cabinet member to serve as acting president unlikely to happen, except in the aftermath of a catastrophic event. [9] Only a few years after the amendment went into effect, in October 1973, at the height of Watergate, Vice President Spiro Agnew resigned. With Agnew's unexpected departure, and the state of Richard Nixon's presidency, Speaker of the House Carl Albert was suddenly first in line to become acting president. The vacancy continued until Gerald Ford was sworn in as vice president on December 6, 1973. [49] Albert was also next in line from the time Ford assumed the presidency on August 9, 1974, following Nixon's resignation from office, until Ford's choice to succeed himself as vice president, Nelson Rockefeller, was confirmed by Congress four months later. [7]

Next in line Edit

The vice presidency has been vacant on 18 occasions since 1789 [31] during those periods, the following people have been next in line to serve as acting president:


What happens if the winning presidential candidate becomes incapacitated before taking office? (2020)

The Twentieth Amendment to the U.S. Constitution governs what happens if the president-elect dies before taking office. In that case, the vice president-elect becomes the president-elect. It is an open legal question whether a candidate becomes the president-elect after winning a majority of the vote in the Electoral College or only after Congress counts the vote. Ώ] The Electoral College is scheduled to vote on December 14, 2020, and Congress is scheduled to count the vote on January 6, 2021. ΐ]

If the president-elect does not die but becomes incapacitated, he could voluntarily transfer authority to the vice-president after Inauguration Day. The Twenty-Fifth Amendment lays out this process. If a president submits a written statement that he “is unable to discharge the powers and duties” of the office, then the vice president becomes acting president. The president can regain the powers and duties of the presidency by submitting a written statement that he is capable of serving again. Α]

The Twenty-Fifth Amendment also addresses the possibility that the president becomes incapacitated but is unable or unwilling to leave office. In that situation, if the vice president and a majority of the cabinet declare the president unfit to serve, the vice president becomes acting president. The amendment also outlines how the president can reassume the powers of the presidency. If the president declares that he is capable of serving, the cabinet and vice president must respond within four days. If this latter group holds that the president is still unfit to serve, Congress must vote on whether to reinstate the president. The president will be reinstated unless a two-thirds majority of both chambers votes against this. Α]


The 2020 election took place against a backdrop of uncertainty. Our readers had questions about what to expect in elections at all levels of government, from the casting of ballots to the certification of final results. Ballotpedia's 2020 Election Help Desk was designed to answer those questions.


Monitoring a President's Health

Carter's suggestion led to the creation in 1994 of the Working Group on Presidential Disability, whose members later proposed a nonpartisan, standing medical commission "to monitor the president's health and issue periodic reports to the country." Carter envisioned a panel of expert physicians who were not directly involved in the care of the president determining whether he had a disability.

"If the president of the United States must decide within minutes how to respond to a dire emergency, its citizens expect him or her to be mentally competent and to act wisely," wrote Dr. James Toole, a professor of neurology at Wake Forest University Baptist Medical Center in North Carolina, who worked with the group. "Because the presidency of the United States is now the world's most powerful office, should its incumbent become even temporarily unable to exercise good judgment, the consequences for the world could be unimaginably far-reaching."

There is currently no such standing medical commission in place, however, to observe a sitting president's decision-making. The sole test of a candidate's physical and mental fitness to serve in the White House is the rigor of the campaign trail and election process.


Who’s next

The 25th amendment of the US constitution, which deals with “presidential vacancy, disability, or inability,” is clear on what happens if the president dies, resigns, or is removed from office. The vice-president (in this case, Kamala Harris) is sworn in to take over the presidential responsibilities until the end of the mandate.

Similarly, if the president is temporarily unable to serve, they have to communicate it in writing to the president pro tempore of the Senate (who presides over the Senate in lieu of the vice-president) and the Speaker of the House. The vice-president then takes on presidential responsibility until the president lets the Senate and House know they can resume their duties. This has happened three times in US history: For about eight hours in 1985, then vice-president George H W Bush acted as president while Ronald Reagan underwent colon cancer surgery. In 2002 and 2007, for two hours each time, vice-president Dick Cheney acted as president while George W Bush underwent two colonoscopies under anesthesia.

If the vice-presidential seat is vacated, the president can nominate a successor, who then has to be confirmed by a simple majority vote in both houses of Congress.

The full extent of this provision was tested during the Richard Nixon presidency. First, his vice-president, Spiro Agnew, resigned in October 1973. Gerald Ford, then the minority leader, was named Agnew’s replacement by the president and voted upon by Congress. Less than a year later, in August 1974, Nixon resigned, and Ford was sworn in as his successor, leaving the vice-presidential office once again vacant. Ford appointed former New York governor Nelson Rockefeller as his vice-president, and he was approved by Congress. All positions were then held until the end of Nixon’s second term in 1977.

But what happens if both the president and the vice-president are unable to serve?

The line of succession, as established by the 1947 presidential succession act, starts with the Speaker of the House (currently, Nancy Pelosi) after the vice-president, then the president pro-tempore of the Senate (currently, Republican senator Charles Grassley of Iowa, but will be Democratic senator Pat Leahy of Vermont after today), and then cabinet members, starting with the secretary of state.

However, the presidential succession act says officials beyond the vice-president in line of succession would only be acting as president, not become president, after resigning from their office. They will only hold the office until a new president can be chosen. This might happen, for instance, if the vice-president was only temporarily incapacitated and, once able to resume the role, could be sworn-in as president. Otherwise, the acting president holds the job—and is paid for it as much as an actual president—until the next presidential election and inauguration. However, because this unlikely chain of events has never occurred, it is not clear what would be the limitations of the acting president’s power as compared to the actual president.

Correction: When he became vice-president, Gerald Ford was minority leader, not speaker of the House.


The Twenty-Fifth Amendment: What Happens if a President Is No Longer Fit to Serve?

Congress passed the 25 th Amendment in 1965 to change a portion of Article II, Section I of the United States Constitution. The amendment aimed to answer several questions that can arise when a president or vice president dies or becomes incapacitated. It was clear that if a president died, resigned, or was removed from office, the Vice President was next in the line of succession. But would they inherit the office of the president, or only their duties? Who, in turn, takes over the Vice President’s duties? What happens if a president becomes unable to perform their duties due to debilitating illness or injury? Congress tried to answer these questions with the Twenty-Fifth Amendment.

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President otherwise, the President shall resume the powers and duties of his office.


PRESIDENTIAL SUCCESSION

The Twenty-fifth Amendment was an effort to resolve some of the continuing issues revolving about the office of the President that is, what happens upon the death, removal, or resignation of the President and what is the course to follow if for some reason the President becomes disabled to such a degree that he cannot fulfill his responsibilities. The practice had been well established that the Vice President became President upon the death of the President, as had happened eight times in our history. Presumably, the Vice President would become President upon the removal of the President from office. Whether the Vice President would become acting President when the President became unable to carry on and whether the President could resume his office upon his recovering his ability were two questions that had divided scholars and experts. Also, seven Vice Presidents had died in office and one had resigned, so that for some twenty per cent of United States history there had been no Vice President to step up. But the seemingly most insoluble problem was that of presidential inability—Garfield’s lying in a coma for eighty days before succumbing to the effects of an assassin’s bullet, Wilson an invalid for the last eighteen months of his term, the result of a stroke—with its unanswered questions: who was to determine the existence of an inability, how was the matter to be handled if the President sought to continue, in what manner should the Vice President act, would he be acting President or President, what was to happen if the President recovered. Congress finally proposed this Amendment to the states in the aftermath of President Kennedy’s assassination, with the Vice Presidency vacant and a President who had previously had a heart attack.

The Amendment saw multiple use during the 1970s and resulted for the first time in our history in the accession to the Presidency and Vice-Presidency of two men who had not faced the voters in a national election. First, Vice President Spiro Agnew resigned on October 10, 1973, and President Nixon nominated Gerald R. Ford to succeed him, following the procedures of § 2 of the Amendment for the first time. Hearings were held upon the nomination by the Senate Rules Committee and the House Judiciary Committee, both Houses thereafter confirmed the nomination, and the new Vice President took the oath of office December 6, 1973. Second, President Richard M. Nixon resigned his office August 9, 1974, and Vice President Ford immediately succeeded to the office and took the presidential oath of office at noon of the same day. Third, again following § 2 of the Amendment, President Ford nominated Nelson A. Rockefeller to be Vice President on August 20, 1974, hearings were held in both Houses, confirmation voted, and Mr. Rockefeller took the oath of office December 19, 1974.1

Footnotes

1 For the legislative history, see S. R EP. NO . 66, 89th Cong., 1st Sess. (1965) H.R. REP. NO . 203, 89th Cong., 1st Sess. (1965) H.R. R EP. NO . 564, 89th Cong., 1st Sess. (1965). For an account of the history of the succession problem, see R. S ILVA, PRESIDENTIAL SUCCESSION (1951).

Presidents get sick and die. What happens next hasn’t always been clear

On July 18, 1947, President Harry Truman signed the Presidential Succession Act, a law designed to clarify the order of succession upon the death of a sitting president and/or vice president. At the time, the critical process of presidential succession was an issue left somewhat unsettled by the Founding Fathers when they wrote and ratified the Constitution in the late 18th century.

To be sure, in Article II, Section 1, Clause 6, the Constitution describes the legal transfer of presidential power to the vice president if the former resigns or dies while in office. But this guiding document does little to describe what happens if the president becomes seriously ill, or who has the legal authority to determine if a particular illness or condition is severe enough to prevent the president from fulfilling his or her job. One reason this issue might have been left unresolved was the state of medicine in the late 18th century unlike today, people tended to die rather quickly of the most serious illness.

In 1791, the first U.S. Congress pondered what would happen if both the offices of president and vice president were left unfilled at the same time and several congressmen urged that the secretary of state be next in line. There was a festering political sore beneath this prescription: The secretary of state at the time was Thomas Jefferson, an ardent anti-Federalist who had many Federalist opponents in the Congress.

The following year, in 1792, the Second U.S. Congress passed a law stating that in the event both the president and the vice-president were dead or disabled, first the Senate president pro tempore and then the speaker of the House would become the acting president until either the disability that prevented the sitting president or vice president from serving was resolved or, in the event of their deaths, a new election could be held.

Nevertheless, presidential succession remained a thorny issue throughout the 19th century and beyond.

In April of 1841, for example, William Henry Harrison died one month after beginning his presidency. His vice president, John Tyler, unilaterally insisted on taking the oath of president — as opposed to “acting president” as many of his colleagues suggested. Matters became complicated again when Abraham Lincoln was murdered in 1865. One of the issues debated in the aftermath of this tragedy was who should be third in line, either the president pro tempore of the Senate (the most senior, and often the oldest, senator in the chamber) or the secretary of state (an appointed rather than an elected official, but the most senior member of the presidential administration).

In 1866, it was agreed that the secretary of state, followed by cabinet officers in order of the tenure of their departments, would succeed the vacancies. But a special election was not yet required by law. The acting president would serve until the next presidential election was judged to be completed by the Electoral College. That said, there was still congressional hand-wringing when Andrew Johnson was impeached, but not removed, in 1868 when James Garfield was shot and left dying for months in 1881 and again, in 1886, when Grover Cleveland and members of Congress urged changes in the succession process after Cleveland’s vice president Thomas Hendricks died in office. When William McKinley was assassinated in 1901, Teddy Roosevelt rose from vice president to president, but served the rest of that term without the benefit of a vice president.

Nearly half a century later, Harry Truman became president in 1945 after Franklin Roosevelt’s death on April 12, one month into his historic fourth term. Once sworn in, Truman lobbied for a return to the succession delineated in the 1792 act, with one key distinction. The speaker of the House would be third in line as acting president, followed by the president pro tempore of the Senate, and then cabinet officers based on the date their department was created (today, the secretary of state remains the most senior and the secretary of homeland security, a position which was created in 2002, is the most junior).

Some have argued that Truman wanted these changes because of his close relationship with then speaker of the House, Sam Rayburn. Truman instead claimed that because the speaker was the leader of “the elected representatives of the people,” he or she should be next to ascend to the vacancy of vice president or president, if the situation arose. Just as important, Truman was acutely aware of the fragility of presidential health and learned first hand the importance of having an unambiguous plan for presidential succession in place.

In 1967, the 25th Amendment of the Constitution was ratified and its four sections further address some (but not all) of the succession issues President Truman raised. The first two sections of the 25th Amendment deal with how presidential power is assumed in the event of a president’s death or resignation and allows the president to nominate a vice president when that office becomes vacant. The third section delineates a president’s voluntary resignation of power. The fourth section discusses the involuntary removal of a president, when he or she is deemed unable to perform the job, by members of the cabinet and of Congress — but this has never been acted upon in American history.

Ethicists and presidential historians insist there remain serious problems in terms of presidential succession, both in the 25th Amendment and in the 1947 Succession Act, particularly in terms of defining the disabilities, physical, or mental illnesses that might prevent the president or vice-president from fulfilling his or her duties. (Several years ago, I wrote about the problems surrounding the 25th Amendment in the Journal of the American Medical Association, June 4, 2008).

To make matters worse, throughout the 20th century, candidates and elected officials have not always been fully forthcoming about their medical histories because of concerns that such disclosures might cost them votes or political support. Woodrow Wilson’s concealment of his debilitating stroke and the role his wife, Edith Galt Wilson, played in both the “cover-up” and by secretly acting as president FDR’s poliomyelitis and lower body paralysis and, later, his congestive heart failure, malignant hypertension, and related disabilities Dwight D. Eisenhower’s secrecy over his 1955 heart attack, 1956 intestinal obstruction, and 1957 stroke John F. Kennedy’s multiple health problems including Addison’s disease and the many medications he took while negotiating sensitive geopolitical matters Richard Nixon’s mental health during the final months of his presidency and Ronald Reagan’s gunshot wounds, cancer surgeries, and the extent of his Alzheimer’s disease are just a few examples of serious disabilities that can affect our chief executives. How have these disabilities affected world events? We will never quite know the answer to that query.

Today, poll after poll demonstrates that the American people want to know about the health of their elected officials, and especially their president. And while private citizens are certainly entitled to privacy with respect to their health, matters become decidedly different when running for or holding the highest office in the land. Some medical experts have suggested that the president undergo an annual physical and mental health examination (including evaluations for depression and Alzheimer’s disease), which are made public upon completion in real time.

The obvious reality is that we are all too human, we all get sick, and we are all going to die. No president — no matter how powerful, beloved, or despised — is immune to the slings and arrows of human disease. Fortunately, we live in an era when so many medical and mental health conditions can be successfully treated and individuals live healthy, normal lives despite having this or that illness. That said, this physician insists that the American voter deserves to know the medical and mental health histories of our nation’s chief magistrate, from the moment they announce their candidacy to their last day in office.

And just as all voters need access to this critical health information as they execute the profound civic duty of electing the next president of the United States, every president should be able to rest easier with the knowledge that there exists a clear path of succession in place, in the event of illness, disability or death. As President Harry Truman once opined about presidential health and disability, “We ought not go on trusting to luck to see us through.”

The Twenty-Fifth Amendment to the U.S. Constitution

Section 1. In case of the removal of the president from office or of his death or resignation, the vice president shall become president.

Section 2. Whenever there is a vacancy in the office of the vice president, the president shall nominate a vice president who shall take office on confirmation by a majority vote of both houses of Congress.

Section 3. Whenever the president transmits to the president pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the vice president as acting president.

Section 4. Whenever the vice president and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide transmit to the president pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the president is unable to discharge the powers and duties of his office, the vice president shall immediately assume the powers and duties of the office as acting president.

Thereafter, when the president transmits to the president pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the vice president and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within 4 days to the president pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the president is unable to discharge the powers and duties of his office. Thereupon, Congress shall decide the issue, assembling within 48 hours for that purpose if not in session. If the Congress within 21 days after receipt of the latter written declaration, or, if Congress is not in session within 21 days after Congress is required to assemble, determines by two-thirds vote of both houses that the president is unable to discharge the powers and duties of his office, the vice president shall continue to discharge the same as acting president otherwise, the president shall resume the powers and duties of his office.

Left: Harry Truman became president in 1945 after Franklin Roosevelt’s death on April 12, one month into his historic fourth term. Photo by Getty Images/Bettmann/Contributor


Succession Confusion: When The President Is Incapacitated

The Constitution has proved to be a marvelously flexibile document, but it is not without its ambiguities and omissions. From time to time efforts are made to deal with these, usually through Supreme Court interpretations, less often when Congress initiates and the states ratify amendments to the basic law. But even the best attempts to clarify sometime fall short in practice. Just what happens--to take a timely example in this election year--when a President is unable to discharge his duties because of a physical or mental disability?

The Constitution says that in such an event the office of President “shall devolve on the vice president.” The original document is silent, however, on how a presidential disability is to be determined, and how a transfer of power should be carried out. This flaw, noted early in the nation’s history, became an issue of immediate concern in 1881, when President James A. Garfield lingered incapacitated for nearly two months after being shot in the back by an assassin. The Cabinet wanted Vice President Chester A. Arthur to take over as acting chief executive since it was clear that Garfield could not carry out his duties. But the Cabinet took no action, in part from concern that the President, should he recover, would be unable to reclaim the office he had surrendered.

THE MECHANISM: A century later President Ronald Reagan was shot in Washington. We know now what the White House tried to hide then: Reagan was a very sick man after the shooting and for 10 days he was effectively unable to function as President. By 1981, however, a mechanism for the temporary transfer of power to the vice president already existed: The 25th Amendment, which took effect in 1967, was intended to fill a constitutional void.

Was thought ever given to invoking its provisions as Reagan lay so critically ill? Daniel Ruge, Reagan’s physician at the time, says “it never entered my mind to use it,” a decision he now says was a “mistake.” But even if Ruge had recommended--which was all that he could do--that Reagan step aside temporarily, there’s a real question whether the President’s personal and political family would have gone along.

THE DEFECT: The 25th Amendment provides two ways for the temporary transfer of executive power: If the President informs Congress in writing that he is unable to discharge his responsibilities, or if “the vice president and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” transmit a similar written declaration. The weakness here is that a President who is incapacitated may obviously be unable or unwilling to notify Congress of his need to be replaced. And a vice president and a majority of the Cabinet may be extremely reluctant to take matters into their own hands--no matter how incapacitated the President is--out of fear that either immediately or at some future time they might be accused of usurping power.

In his book, “The President Has Been Shot,” Dr. Herbert L. Abrams looks at the 25th Amendment’s shortcomings and concludes that in its first test, after the attempt on Reagan’s life, it proved “a most miserable failure.” Abrams attributes that to “ignorance, caution, concern and guile” on the part of those closest to the President. Given the political and personal constraints that inevitably come into play when a President is seriously ill, what does Abrams propose? One idea is for an independent panel of experts who would examine the President and publicly report on any disabling condition.

THE NEED: That view is unlikely to be endorsed either by the medical establishment, which assigns high priority to protecting doctor-patient confidentiality, or by those who are keen to keep decision-making on this vital issue at the highest political level. Saying this, though, doesn’t change Abrams’ key point: In its first test the 25th Amendment did not do what its drafters intended. It did not lead to a temporary transfer of power when the President was, as we now know, incapable of functioning as President.

Before a second test comes along, Congress should be thinking about what can be done to give the crucial disability amendment the effectiveness it needs. Presidents are mortal. They can die in office of natural causes, as three have they can be killed or grievously wounded by assassins, as five have been they can be incapacitated by illness, as Woodrow Wilson was for the last 18 months of his presidency, or as Dwight D. Eisenhower was three times during his two terms in office. The 25th Amendment needs a fresh look, and clearer guidelines for dealing with presidential disabilty.


If Biden’s Incapacitated, Harris Succeeds, Which Could Cause Utter Gridlock

Here&rsquos a thought experiment.

The Democrats somehow manage to win both of the senatorial races in Georgia, dividing the Senate 50-50. Vice President Kamala Harris breaks the ties, giving Democrats the majority.

Then, suppose something happens to President Joe Biden. (Don&rsquot get me wrong here. I wish him a long and happy life. But he is 78 years old, and the presidency is stressful. It&rsquos not inconceivable that Biden could become unable to hold office at some point during the next four years.)

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Under the 25th Amendment to the Constitution, Vice President Harris succeeds to the presidency, and the vice presidency becomes vacant. Here&rsquos the succession process:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

So Harris nominates someone.

There&rsquos a Democratic majority in the House of Representatives, so the House votes to confirm the new vice president.

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But the Senate is now deadlocked 50-50, and there&rsquos no vice president in place to break the tie.

I hate to be a pessimist realist, but Mitch McConnell would be nuts to confirm anyone as vice president. With the office empty, McConnell would have the ability to deadlock every vote in the Senate at 50-50, and nothing could pass without Republican consent. The instant McConnell allowed a vice president to be confirmed, the Democratic vice president could begin breaking ties in the Democrats&rsquo favor.

First, I don&rsquot think the 25th Amendment envisioned this situation. Someone with the ability to speak wisdom to power should identify this situation and cause it to be fixed, either by constitutional amendment (which would become effective sometime in the future, so no one would think it&rsquos an effort to get Harris&rsquo nominee confirmed) or by statute.

Second, my little thought experiment leaves Nancy Pelosi next in line for the presidency if something were to happen to Harris. Harris appears to be a strong and vibrant woman, so there&rsquos no reason to think this eventuality would come to pass, but I bet the very idea of President Pelosi gives Mitch McConnell the shivers. Perhaps he&rsquod agree to some centrist vice president simply to avoid the chance of Pelosi succeeding to the presidency. Or perhaps McConnell&rsquos reaction depends on when Biden became unable to perform the duties of his job: If Biden were incapacitated in February 2021, leaving Harris in office for four years, McConnell might worry. If Biden were incapacitated late in 2024, McConnell might let it ride.

Finally, has it really come to this? My little thought experiment reveals just how nervous I am about partisanship in America and the parties&rsquo apparent unwillingness to do anything for the good of the country.