Twenty-fifth Amendment to the United States Constitution
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The Twenty-fifth Amendment (Amendment XXV) to the
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President ...
This provision is ambiguous as to whether, in the enumerated circumstances, the vice president becomes the president, or merely assumes the "powers and duties" of the presidency. It also fails to define what constitutes inability, or how questions concerning inability are to be resolved. The Twenty-fifth Amendment addresses these deficiencies.
Section 1 clarifies that in the enumerated situations the vice president becomes president, instead of merely assuming the powers and duties of the presidency.
Section 2 addresses the Constitution's original failure to provide a mechanism for filling a vacancy in the office of vice president. The vice presidency had become vacant several times due to death, resignation, or succession to the presidency, and these vacancies had often lasted several years.
Section 3 allows the president to voluntarily transfer his authority to the vice president (for example, in anticipation of a medical procedure) by declaring in writing his inability to discharge his duties. The vice president then assumes the powers and duties of the presidency as acting president; the vice president does not become president and the president remains in office, although without authority. The president regains his powers and duties when he declares in writing that he is again ready to discharge them.
Section 4 addresses the case of an incapacitated president who is unable or unwilling to execute the voluntary declaration contemplated in Section 3; it is the amendment's only section that has never been invoked. It allows the vice president, together with a "majority of either the principal officers of the executive departments or of such other body as Congress may by law provide," to declare the president "unable to discharge the powers and duties of his office" in a written declaration. The transfer of authority to the vice president is immediate, and (as with Section 3) the vice president becomes acting president – not president – while the president remains in office, albeit divested of all authority.
A president thus declared unable to serve may issue a counter-declaration stating that he is indeed able. This marks the beginning of a four-day period during which the vice president remains acting president.:38n137 If by the end of this period the vice president and a majority of the "principal officers of the executive departments" have not issued a second declaration of the president's incapacity, then the president resumes his powers and duties.
If a second declaration of incapacity is issued within the four-day period, then the vice president remains acting president while Congress considers the matter. If within 21 days the Senate and the House determine, each by a two-thirds vote, that the president is incapacitated, then the vice president continues as acting president; otherwise the president resumes his powers and duties.[note 1]
Section 4's requirements for the vice president to remain acting president indefinitely – a declaration by the vice president together with a majority of the principal officers or other body, then (if the president makes a counter-declaration) a two-thirds vote of the House and a two-thirds vote of the Senate – contrasts with the Constitution's procedure for removal of the president from office for "high crimes and misdemeanors" – a majority of the House (Article I, Section 2, Clause 5) followed by two-thirds of the Senate (Article I, Section 3, Clause 6).