In 2015 the Reagan Presidential Library began developing a one-of-a-kind experiential learning simulation called the Situation Room Experience. Developed primarily for high school juniors and seniors, the game allows students to step into the role of a government official or member of the press to deal with a modern, fictional, foreign policy crisis based on the real documents kept within the archives at the Reagan Library. One of the pivotal issues in the Situation Room Experience regards the 25th Amendment to the Constitution of the United States. This blog post, from Reagan Library Education Department staffer Brett Robert, is the first of a series that explores that Amendment in-depth. Part II of the series examines Section 3 of the 25th Amendment.
On April 3, 1841 when William Henry Harrison died in office only a month into his first term, a Constitutional crisis occurred centering around Presidential succession. No American President had died in office before. Article II, Section 1, Clause 6 of the Constitution states “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.” An argument took shape that was not settled until the ratification of the 25th Amendment in 1967. Some argued that this clause meant only that the Vice President would become Acting President taking on the powers of the Presidency, but not the actual President of the United States. Vice President John Tyler argued that he was now President of the United States, and had himself sworn in as such. His political opponents mockingly nicknamed him “His Accidency” and his single term was plagued by a contentious relationship with Congress.
The problem of Presidential succession continued to plague the United States until the 25th Amendment was ratified in 1967. Since 1792, Congress has passed several laws and Constitutional Amendments to clarify the process of Presidential succession, which you can explore in some of the resources listed at the bottom of this post. Yet there were still problems that these laws could not solve, problems the 25th Amendment was designed to solve. The 25th Amendment has 4 sections, each of which was written to address a different problem of Presidential succession. Today’s blog post addresses the first two sections of the 25th Amendment. The rest of this series will discuss sections 3 and 4 and tell the history of the 25th Amendment and how it became part of our United States 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 1 codified the “Tyler precedent” into law. As previously stated, when President Harrison died, his Vice President John Tyler argued that he should be sworn in as President, while many thought Tyler would become “Vice President and acting President.” In the end, Tyler was administered the oath of office of the President of the United States, setting a precedent that was followed thereafter by serving Vice Presidents who became President upon the death of a President.
Before the 25th Amendment Zachary Taylor, Abraham Lincoln, James Garfield, William McKinley, Warren Harding, Franklin Roosevelt, and John F. Kennedy all died while serving as President of the United States. From time to time, scholars and pundits worried publicly whether or not the Tyler precedent was actually lawful under the Constitution and some argued that it fell into a Constitutional gray area. When the 25th Amendment was ratified in 1967, the principle behind Tyler precedent became part of the Constitution, and the gray area was eliminated. It was now clear: in the case of the death or removal of the President, the Vice President becomes President. In such a case, there is no need for an “Acting President.”
An in-depth article exploring the history of Presidential succession is available online here from Prologue, an official magazine published quarterly by the National Archives and Records Adminstration.
To date the only time Section 1 of the 25th Amendment has been used was August 9, 1974 when Vice President Gerald Ford acceded to the office of President of the United States of America upon the resignation of President Richard Nixon.
“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 2 of the 25th Amendment allows the President to appoint a Vice President in the case of a vacancy in the office. Each House of Congress then meets to vote on whether or not to approve, or confirm, the President’s choice, or nominee, for Vice President. To approve the nominee requires a majority in each House, which means more than half of all votes. So in the Senate, which has 100 members, the nominee would need at least 51 votes, and in the House of Representatives, which has 435 members, the nominee would need at least 218 votes.
Before the 25th Amendment every time a President died in office and the Vice President used the Tyler precedent to become President, the office of the Vice President was vacant with no way to fill that office until the next Presidential election. President Kennedy’s death in 1963 was the eighth time a President had died in office. Additionally if the Vice President died, which has happened seven times, or resigned, which has happened twice, there was no way to replace the second-highest officeholder in the Executive Branch.
Senator Birch Bayh, one of the primary architects of the 25th Amendment along with lawyer John D. Feerick of the American Bar Association, recalled being struck by a sudden realization as he thought about Lyndon Johnson after hearing about the assassination of President John F. Kennedy:
“No other man had come to the Presidency with such experience. As Vice President, he had been uniquely suited to contribute to the making of important governmental decisions. Now he would be the one to make those decisions, seeking in turn the counsel of his Vice President. But there I sat up sharply. There was no Vice President now!”
Birch Bayh, One Heartbeat Away, New York: The Bobbs-Merrill Company, Inc., 1968, 6.
Section 2 of the 25th Amendment was a direct response to the problems posed by not having a Vice President. Since the Vice President can break a tie in the Senate, if the Vice President succeeded to the Presidency that would change not only the makeup of the Executive Branch, but also of the Legislative Branch. Without a Vice President, deadlocks in the Senate could not be broken.
After the 25th Amendment became law, Section 2 was first used to appoint Vice President Gerald Ford to the office after Vice President Spiro Agnew’s resignation in 1973. After Ford became President upon Richard Nixon’s resignation, he became both the first Vice President appointed under the 25th Amendment and the first President to attain the office through the 25th Amendment. As President, Ford then appointed former New York Governor Nelson Rockefeller as Vice President. Vice President Rockefeller was sworn in as the 41st Vice President of the United States, after a 90-7 approval vote by the Senate and a 287-128 approval vote by the House of Representatives.
Further Resources for Additional Exploration
The Gerald Ford Presidential Library’s website has a comprehensive online exhibit and list of resources you can access here. President Ford was the first Vice President appointed and confirmed under Section 2 of the Amendment, the first Vice President to accede to the Presidency under Section 1 of the Amendment, and the second President to appoint a Vice President to be confirmed under Section 2. Along with many photos, including the one featured above of Gerald Ford taking the Vice Presidential oath, there are all kinds documents and information featured in the exhibit.
One interesting highlight is the above letter thanking Senator Birch Bayh, which you can download here as a .pdf, for his support during the confirmation process. Senator Bayh was one of the principal architects of the 25th Amendment, the writing of which will be explored in a future post in this series. Even though Gerald Ford and Birch Bayh were from differing parties and different Houses of Congress, there is a clear respect in this laconic missive from then-Representative Ford.
Some resources on the history of laws and Amendments regarding Presidential Succession:
- The Presidential Succession Act of 1792 – this page from Senate.gov explains is about the first Congressional law on the subject.
- The Twelfth Amendment – the National Constitution Center‘s page about the Amendment ratified in 1804, which had a small section about succession.
- Amendment XX: Presidential Term and Succession, Assembly of Congress – From the National Constitution Center and Annenberg Classroom. The 20th Amendment was ratified in 1933 and altered the changes to Presidential succession made by the 12th Amendment.
- Amending America: The 20th Amendment, January 20, and Presidential Inaugurations – our blog post about the 20th Amendment
- The Presidential Succession Act of 1947 – this page from Senate.gov discusses the 20th century law that modified the Congressional acts of 1792 and 1886.
For Students and Educators
Vocabulary Terms and Key Figures
Constitution
Constitutional Amendment
Presidential succession
accede
President
Vice President
Executive Branch
Legislative Branch
Senate President Pro Tempore
Congress
Senate
House of Representatives
deadlock
missive
laconic
Gerald Ford
Birch Bayh
Richard Nixon
Spiro Agnew
William Henry Harrison
John Tyler
“Tyler Precedent”
majority
Short Answer Questions
1. What was the “Tyler Precedent”?
2. How many sections are there of the 25th Amendment?
3. What did Section 1 of the 25th Amendment do?
4. What did Section 2 of the 25th Amendment do?
5. What problems was the 25th Amendment written to solve?
Deeper Analysis Questions
Since the 25th Amendment allowed Gerald Ford to become President without being elected as either Vice President or President, do you think the 25th Amendment circumvents democracy? Why or why not? Can you create a convincing argument for the opposing opinion to your own?
What political, technological, and foreign policy events and advances in the 20th century might have influenced the 25th Amendment? Do you think the Congress, State Legislatures, and President of the United States might have still ratified the 25th Amendment in different circumstances?
The Reagan Presidential Library’s Situation Room Experience has partnered with iThrive Games to help high school students understand the 25th amendment. A virtual role playing experience called iThrive Sim: Leading Through Crisis assists students in exploring what the amendment means and how and when it can be invoked. Click here to be notified when this educational activity becomes available.
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