HISTORICAL INVOCATIONS OF THE 25TH AMENDMENT

Since its ratification in 1967, the provisions of the 25th Amendment to the United States Constitution have been involved on six different occasions:

October 10, 1973:  Vice President Agnew Resigns

In the spring of 1973, charges began to surface that Vice President Spiro Agnew had accepted a series of bribes and kickbacks amounting to nearly a quarter million dollars while serving as Governor of Maryland.  As the year progressed evidence mounted, and by October formal charges had been brought - the first time in American history an American Vice President faced criminal charges since Aaron Burr shot and killed Alexander Hamilton in their famed duel on June 11, 1804.

Following a great deal of posturing and some quiet pressure applied by the Nixon White House, on October 10, 1973 Agnew finally relented, resigning the Vice Presidency and pleading nolo contendre (no contest) to the charges against him - a plea bargain that cost Agnew $ 10,000, three years probation, the Vice Presidency of the United States, his ability to practice law (he would be disbarred in his native Maryland), and his honor. One thing Agnew did keep, ultimately, was his freedom.

For the first time since the 25th Amendment was ratified, a Vice Presidential vacancy had occurred.  President Richard Nixon's first choice to succeed Agnew was former Texas Governor John Bowden Connally.  In fact, in 1971 Nixon reportedly had lined Agnew up with a prominent position in the private sector in hopes he would resign, so he could appoint Connally as his successor.  He also floated the possibility of appointing Agnew to the next vacant seat on the Supreme Court.  In each case though Nixon encountered two problems with his plan:  the first was that Connally was a former Democrat, having "defected" to the party just a scant few years earlier.  The other was that Connally didn't want the job.

Nixon would settle on his second choice, and on October 12, 1973 he nominated House Minority Leader Gerald Rudolph Ford, Jr., who in 24 years in the House had built impeccable credentials and was well liked and respected.  The ability to confirm Ford played a role as well - it seemed unlikely Congress would refuse to confirm one of their own.  But Ford was also seen as a moderate, definitely an image the Nixon White House wanted to exploit as a contrast to the more conservative, hawkish Agnew.  Ford's confirmation hearings were run of the mill by today's standards but seen as contentious.  He was extensively questioned about contributions to his Congressional campaigns, over his defense of the Nixon administration on the House floor, on his civil rights record, and on claims he used influence to impede the initial stages of investigating financial improprieties during the 1972 presidential election.

In the end however, the Senate Rules Committee unanimously recommended Ford's confirmation, while the House Judiciary Committee voted 24-8 in favor of confirmation.  The Senate easily confirmed Ford on November 27, 1973, while the House followed suit nine days later by a 387-35 vote.  Ford was sworn in during a simple ceremony on December 6, 1973, completing the first use of the 25th Amendment.  During his address to the nation, the newly installed Vice President quipped "I am a Ford, not a Lincoln."  Less than nine months later, however, like Lincoln Ford would join him as President of the United States.

August 9, 1974:  President Nixon Resigns

As if having a Vice President convicted of taking kickbacks weren't a big enough black eye for the Nixon administration, Nixon couldn't focus much on Agnew's legal difficulties as he had a mountain of them himself - troubles which ultimately would lead to his resignation and the second invocation of the 25th Amendment in less than a year.

On June 17, 1972, five burglars were arrested at the Watergate Hotel in Washington, D.C., caught breaking into Democratic Party national headquarters.  In October, the Washington Post reported that the Federal Bureau of Investigation had uncovered evidence that the burglary was tied to a conspired effort to spy on Democratic presidential hopefuls in hopes of learning damaging information that would help Nixon's re-election effort.  The investigation, soon simply referred to as "Watergate," began slowly but soon took on a life of its own, particularly when connections between the break-in and Nixon's re-election bid surfaced.

Senate hearings conducted during the summer of 1973 virtually put the nation on its ear, and Nixon, fighting tooth and nail each step of the way, would eventually not only ask for the resignations of key White House staffers such as counsel John Dean, John Ehrlichman, and his own chief of staff (H.R. "Bob" Haldeman), but ultimately would submit his own.  On July 13, 1973, Deputy Assistant to the President Alexander Butterfield revealed that a tape recording system was in place at the White House - and that everything said in the Oval Office was recorded.  This transformed the investigation, and the recordings ultimately would lead to Nixon's downfall.

Rather than co-operate fully with the investigation, Nixon instead fought the release of the tapes, citing executive privilege.  On October 20, 1973, the soap opera took a new turn as the President fired his own Attorney General (Elliot Richardson) as well as his deputy, William Ruckleshaus, when they refused to dismiss Watergate special prosecutor Archibald Cox.  The "Saturday Night Massacre" as it became known ended when Nixon designated Solicitor General Robert Bork as Acting Attorney General, then had him fire Cox.  The handwriting was on the wall, and the House of Representatives began formal impeachment proceedings.  A legal battle over the recordings went to the United States Supreme Court.  Public confidence in Nixon was rapidly eroding, and a second term that began with great dreams had turned into a hideous nightmare.

On July 24, 1974, the United States Supreme Court ruled that Nixon would have to surrender the tape recordings to investigators, and days later the House Judiciary Committee voted 27-11 to recommend that the full House pass an article of impeachment against Nixon for obstruction of justice.  Over the next few days, the committee would send two more impeachment articles to the House - one for abuse of power and another for contempt of Congress.  After dragging his feet for several days and assessing his chances of surviving an impeachment trial in the Senate (most contemporary reports predicted he'd be lucky to get 15 votes for acquittal, far short of the 34 he'd need to stay in office), Nixon finally decided to resign.  In a nationally televised address on August 8, 1974, Nixon announced he'd resign "effective at noon tomorrow," with Vice President Gerald Ford succeeding him.  Nixon signed a one sentence letter of resignation, which was received by Secretary of State Henry Kissinger at 11:35 a.m. on August 9th - the official moment he stepped down.  25 minutes later, Gerald Ford would become the nation's 38th President.

1974:  The Appointment of Nelson Rockefeller as Vice President

On August 9, 1974, Gerald Rudolph Ford, Jr. became the nation's 38th President, succeeding Richard Nixon.  While the Watergate investigation still loomed large, Ford's ascent to the Oval Office left a vacancy in the office of Vice President for the second time in just under ten months.  Immediately upon Ford's assumption of the office, speculation began as to who would be chosen to succeed him as Vice President.  Ford himself weighed several candidates, among them Wisconsin congressman Melvin Laird and Republican National Committee chairman (and later, both Vice President and President) George H.W. Bush.

Laird reportedly begged off much in the same way John Connally had done with Richard Nixon prior to Ford's appointment the year before, while at the time Bush was a target of reports that linked him with a secret Nixon campaign slush fund - unproven, but at that point Ford couldn't take chances.  And so, on August 20, 1974, former New York Governor and candidate for the Republican Presidential nomination Nelson Aldrich Rockefeller was nominated by President Ford under Section 2 of the 25th Amendment to fill the vacant Vice Presidency.

While some anticipated a quick, easy confirmation based on Rockefeller's extensive political record, particularly his service as Governor of New York, the confirmation process would drag on for most of the remainder of 1974.  Congress investigated Rockefeller perhaps more thoroughly than anyone in government had ever been to date, particularly because of his family's vast holdings in major corporations that did business with the government.  Rockefeller, whose worth at the time was estimated at $178 million, offered to allay Congressional fears by placing his securities in a blind trust if confirmed.  Despite the contentiousness of the confirmation process, in the end the United States Senate laid its fears aside and voted 90-7 to confirm Rockefeller.  The House vote was somewhat closer (287 to 128) but was sufficient under Section 2 of the 25th Amendment, and on December 19, 1974 Nelson Aldrich Rockefeller became the 41st Vice President of the United States.

March 30, 1981:  The Invocation That Should Have Been

One of the ironies of the 25th Amendment's history is that while its provisions to date have been utilized to fill vacant Vice Presidencies and for the Vice President to act as President on three different occasions related to the chief executive's colon, on the one instance where constitutional scholars almost unanimously feel it should have been applied, it wasn't.

On March 30, 1981, just 69 days into his administration, President Ronald Reagan was attacked by would-be assassin John Hinckley, Jr., who fired six shots at the President and his entourage as they walked out of the Washington Hilton Hotel.  White House Press Secretary James Brady, Washington D.C. police officer Thomas Delahanty and U.S. Secret Service agent Timothy McCarthy were wounded in the attempt, as was Reagan himself, struck just under the left armpit by the sixth and final bullet fired after it ricocheted off his limosuine.

Reagan initially was thought to be unharmed, but Secret Service agent Jerry Parr noticed that the President was coughing up blood and immediately ordered the limousine's driver to take Reagan to nearby George Washington University Hospital. There, the President's bullet wound was discovered (the bullet was, in fact, less than one inch from the President's heart), and the decision was immediately made to operate.

Several members of the cabinet convened in the White House Situation Room following the attempt, discussing among other things whether or not to invoke Section 4 of the 25th Amendment.  Under Section 4, Vice President George H.W. Bush and a majority of the members of Reagan's cabinet could declare the President incapacitated, at which point the Vice President would immediately begin acting as President.  While the option was discussed, it was shelved in part because Bush had misgivings about invoking the amendment, even in light of the circumstances.  Rather than to invoke Section 4, Reagan's cabinet and staff instead engaged in a cover-up regarding the President's health.  Anxious to give the appearance that Reagan wasn't as infirmed as he was, his staff managed to get Reagan to sign a piece of legislation the morning after his operation.  It would be another two weeks before Reagan would leave the hospital however, nearly a month before a cabinet meeting would be convened with Reagan as its chair, and Reagan's physician believed his actual recovery period extended over six months.

In the aftermath of the assassination attempt, the decision not to invoke Section 4 proved to have public relations consequences for the Reagan administration.  In a situation tailor-made for the use of Section 4, the new administration's failure to do so left many in the press and the general public wondering why invocation didn't occur - and who in fact was "running the country" during Reagan's recovery.

July 13, 1985:  Acting President George Herbert Walker Bush

On July 12, 1985, President Ronald Reagan underwent a colonoscopy procedure administered by Dr. Edward Cattow.  The procedure revealed the existence of a tumor which could be removed only by performing major surgery, and Cattow gave Reagan an option - undergo the operation immediately, or in a few weeks time.  Having been prepared for potential emergency surgery as part of the colonoscopy procedure and not wanting to undergo the regimen a second time, Reagan elected to undergo the operation the following day.

That evening, Reagan consulted with White House Chief of Staff Donald Regan, Attorney General Edwin Meese, Vice President George H.W. Bush, and White House counsel Fred Fielding as to whether or not the provisions of Section 3 of the 25th Amendment should be invoked.  While Reagan personally thought doing so might set an undesirable precedent, those he consulted with recommended invocation - particularly in light of the failure to do so following the March 1981 assassination attempt by John Hinckley, Jr.

The decision was made to invoke Section 3, and Fielding was instructed to draft two sets of letters:  one that explicitly mentioned Section 3 of the amendment, and another that didn't.  Reagan reviewed the letters the following morning, and at 10:32 a.m. signed the latter, ordering its transmission to House Speaker Thomas P. "Tip" O'Neill and Senate President Pro Tempore J. Strom Thurmond.  The transmission occurred at 11:28 a.m., whereupon Vice President George H.W. Bush became the first "Acting President of the United States" in the nation's history.  The letter read as follows:

July 13, 1985

Dear Mr. Speaker (Dear Mr. President):

I am about to undergo surgery during which time I will be briefly and temporarily incapable of discharging the constitutional powers and duties of the office of President of the United States.

After consultation with my counsel and the Attorney General, I am mindful of the provisions of Section 3 of the 25th Amendment to the Constitution and of the uncertainties of its application to such brief and temporary periods of incapacity.  I do not believe that the drafters of this Amendment intended its application to situations such as the instant one.

Nevertheless, consistent with my long-standing arrangement with Vice President George Bush, and not intending to set a precedent binding anyone privileged to hold this office in the future, I have determined and it is my intention and direction that Vice President George Bush shall discharge those powers and duties in my stead commencing with the administration of anesthesia to me in this instance.

I shall advise you and the Vice President when I determine that I am able to resume the discharge of the constitutional powers and duties of this office.

May God bless this Nation and us all.

Sincerely,

Ronald Reagan

The follow-up later, in which Reagan resumed the powers and duties of the presidency, would be transmitted at 7:22 p.m., just eight hours and fifty minutes later.  It read as follows:

July 13, 1985

Dear Mr. Speaker (Dear Mr. President):

Following up on my letter to you of this date, please be advised that I am able to resume the discharge of the constitutional powers and duties of the office of the President of the United States.  I have informed the Vice President of my determination and my resumption of those powers and duties.

Sincerely,

Ronald Reagan

Some have debated whether or not Reagan's actions actually constituted an invocation of the 25th Amendment.  The debate centers around the final sentence of the second paragraph in Reagan's invocation letter, "I do not believe that the drafters of this Amendment intended its application to situations such as the instant one."  This sentence has resulted in doubts among some scholars, and in the media, to the extent that when George W. Bush invoked the amendment in 2002 (see below), many erroneously cited it as the first use of the provisions of Section 3 - a myth that in some minds prevails to this day.

However, a closer examination of the facts surrounding the situation, and of the text of Reagan's invocation letter itself, leave no doubt:  Reagan fully intended to, and did, designate George H.W. Bush as Acting President.  This conclusion is predicated on six key points:

(1)  While Reagan's letter didn't specifically cite Section 3 of the 25th Amendment, his actions clearly demonstrated his intent.  The President consulted with his closest advisors on the matter, then followed the procedure set forth in Section 3 of the amendment to the letter.  There is no other basis, or precedent, for which Reagan would feel compelled to follow this procedure unless it was his intention to invoke Section 3 of the 25th Amendment, and there are no other requirements under law for a President to notify anyone of a transfer of executive authority.

(2)  The first paragraph states it clearly:  "...I will briefly and temporarily incapable of discharging the constitutional powers and duties of the office of President of the United States."  This text mimics the phrasing of the 25th Amendment's provisions almost precisely.

(3)  The second paragraph expresses Reagan's personal doubts about invoking the amendment, but doesn't in any manner state its his intent not to do so.  The paragraph's controversial last sentence is a statement of his opinion, and not one of his - or anyone else's - interpretation. 

(4)  Had Reagan serious questions about applying the provisions of the 25th Amendment, or had any doubt that "the drafters of this Amendment intended its application to situations such as the instant one," he need only have picked up a telephone and called the 25th Amendment's chief architect, former Indiana Senator Birch Bayh, who then (and as of May 2011, as now) is very much alive and well.  Reagan made no such call.

(5)  Another parsed sentence in the third paragraph, "...not intending to set a precedent binding anyone privileged to hold this office in the future..." is often cited as another piece of evidence that Reagan didn't intent to install Bush as Acting President.  But, as with the second paragraph, it is not Reagan's interpretation but merely a statement of his personal wishes.  The firestorm of criticism that came after Reagan's assassination attempt and the failure to invoke the 25th Amendment then made the administration particularly sensitive to potential repeats of their errors.  Reagan thought invoking the 25th Amendment in this instance might be seen as doing so in something less than an emergency situation, and as such he was reluctant to do so for fear that every time a President underwent any kind of medical procedure, it would become a matter of course to transfer executive authority.

(6)  Finally, in the same sentence as the "not intending to set a precedent" line, the letter again states unequivocally that "I have determined and it is my intention and direction that Vice President George Bush shall discharge those powers and duties in my stead... in this instance."  As with the opening paragraph, this is a clear statement of Reagan's intention to transfer executive authority, installing Bush as Acting President.

Vice President Bush acted as President for 7 hours and 50 minutes.  In keeping with the desire to downplay the situation as little more than routine, Bush spent the majority of his tenure as "Acting President" playing tennis with friends and family.  President Reagan's operating was successful, and he was brought out of sedation in the mid-afternoon on July 13th.  While some advisors recommended that Vice President Bush continue to act as President for a few days while Reagan recovered, White House Chief of Staff Donald Regan and others felt it was imperative that the President resume office as soon as practicable.

June 29, 2002:  Acting President Richard Bruce Cheney

President George Walker Bush will go down in history for a variety of reasons, but one of the lesser recalled ones will be that he was the first President to transfer executive authority to his Vice President on multiple occasions.  The first of these was on June 29, 2002, when Bush underwent a colonoscopy procedure.  While a common medical procedure, colonoscopies require sedation, and Bush was intent on ensuring that there were no questions about Vice President Richard B. "Dick" Cheney's authority should an emergency occur during his sedation.

When asked by the media about the situation on the day prior to the procedure, Bush stated "We looked at the (Reagan) precedent.  I'm the first President to have done so under this type of procedure and/or physical examination.  I did so (planned to invoke the 25th Amendment) because we're at war I just want to be super -- you know, super cautious."  By all accounts of the event at the time, the President elected to invoke Section 3 of the 25th Amendment on his own, with little or no consultation with Attorney General John Ashcroft, White House counsel Alberto Gonzalez, or members of his cabinet or staff.

At 7:09 a.m. on June 29th, Bush signed a letter transferring executive authority, giving it to Gonzalez for transmission by facsimile to Senate President pro tempore Robert Byrd, House Speaker J. Dennis Hastert, and to Vice President Cheney himself.  Gonzalez then called the offices of each to confirm their receipt of the letters, which read as follows:

June 29, 2002

Dear Mr. Speaker (Dear Mr. President):

As my staff has previously communicated to you, I will undergo this morning a routine medical procedure requiring sedation.  In view of the present circumstances, I have determined to transfer temporarily my Constitutional powers and duties to the Vice President during the brief period of the procedure and recovery.

Accordingly, in accordance with the provisions of Section 3 of the Twenty-Fifth Amendment to the United States Constitution, this letter shall constitute my written declaration that I am unable to discharge the Constitutional powers and duties of the office of President of the United States.  Pursuant to Section 3, the Vice President shall discharge those powers and duties as Acting President until I transmit to you a written declaratioon that I am able to resume the discharge of those powers and duties.

Sincerely,

George W. Bush

Vice President Cheney acted as President for just under two and a half hours.  Bush's procedure found no abnormalities and at 9:24 a.m., he transmitted the second, one-paragraph letter to the Congressional officers required under the 25th Amendment, declaring himself once again capable of resuming his powers and duties.  It read as follows:

June 29, 2002

Dear Mr. Speaker (Dear Mr. President):

In accordance with the provisions of Section 3 of the Twenty-Fifth Amendment to the United States Constitution, this letter shall constitute my written declaration that I am presently able to resume the discharge of the Constitutional powers and duties of the office of President of the United States.  With the transmittal of this letter, I am resuming those powers and duties effective immediately.

Sincerely,

George W. Bush

Unlike the initial invocation in 1985, this was a textbook case of how the amendment should be implemented from a procedural standpoint.  Bush's first letter cited the law and specified that Cheney would become Acting President.  The second again cited the law, and save what could be perceived as an authoritarian tone ("I am resuming those powers and duties") it was again a textbook invocation.  At the time of the transfer some speculated as to whether or not the situation merited a transfer of authority under the 25th Amendment.  At first glance it seemed as though Reagan's 1985 invocation was obviously necessary while Bush's 2002 invocation perhaps was invoked with undue caution.  However, looking at the world situation at the time, and for that matter throughout the Cold War period, the necessity of having a supreme national executive available at all times made it a logical, rational move on the part of the Bush administration.

July 21, 2007:  Acting President Richard Bruce Cheney (second occurrence)

Roughly five years after his first invocation of the 25th Amendment, on July 20, 2007 President George W. Bush's medical staff advised the media that Vice President Cheney would once again act as President while Bush underwent a colonoscopy procedure.  As was the case in 2002, Bush opted to invoke Section 3 of the 25th Amendment, and at 7:16 a.m. on July 21 he signed a letter transferring executive authority and had it transmitted via Fax to Senate President pro tempore Robert C. Byrd, House Speaker Nancy Pelosi, and to Vice President Cheney. The text of the 2007 letter was identical to that he utilized in 2002.

Vice President Cheney acted as President for all of 125 minutes, and, unlike the previous two times the nation had an Acting President, Cheney actually did something.  Perhaps somewhat aware of the fleeting and footnote-like historical situation he was in, Acting President Cheney took at least a portion of his time as our nation's acting commander-in-chief to write a letter to his grandchildren, which read:

Dear Kate, Elizabeth, Grace, Philip, Richard and Sam,

As I write this, our nation is engaged in a war with terrorists of global reach.  My principal focus as Vice President has been to help protect the American people and our way of life.  The vigilance, diligence and unwavering commitment of those who protect our Nation has kept us safe from terrorist attacks of the kind we faced on September 11, 2001.  We owe a special debt of gratitude to the members of our armed forces, intelligence agencies, law enforcement agencies and others who serve and sacrifice to keep us safe and free.

As you grow, you will come to understand the sacrifices that each generation makes to preserve freedom and democracy for future generations, and you will assume the important responsibilities of citizens in our society.  I ask of you as my grandchildren what I asked of my daughters, that you always strive in your lives to do what is right.

May God bless and protect you,

Richard B. Cheney

Acting President of the United States

(Grandpa Cheney)

President Bush's procedure found five polyps which were removed, and at 9:21 a.m., he transmitted a second letter to the Congressional officers required under the 25th Amendment, declaring himself once again capable of resuming his powers and duties.  It read as follows:

July 21, 2007

Dear Madam Speaker (Dear Mr. President):

This letter shall constitute my written declaration that I am presently able to resume the discharge of the Constitutional powers and duties of the office of the President of the United States.

Sincerely,

George W. Bush

 

Home
1787:  The Constitutional Convention
1790:  The Father Falls Ill
1792:  First Pass
1813 and 1818:  Back to Back Illnesses
1841:  Establishing a Precedent
1844:  The Princeton Disaster
1849:  President Who?
1850:  The Death of President Taylor
1868:  A Near Congressional Coup
1881:  The Garfield Crisis
1886:  Second Time Around
1901:  The McKinley Incapacity
1919 to 1921:  The Clarion Call Unanswered
1943 to 1945:  FDR's Later Years
1947:  Third Time the Charm?
1953:  The Eisenhower-Nixon Agreement
1963:  Tragedy in Dallas
History of the 25th Amendment
Historical Invocations
Current Presidential Succession Law
25th Amendment in Popular Culture
Who's Next in Line, Anyway?
Contact the Author
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
-

Copyright © 2007, 2009, 2011 - D.P. McIntire.  All Rights Reserved.

The author grants permission to use the information and opinions contained within this web site for any valid educational purpose, without limitation, provided appropriate citations are used.