In 2015 the Reagan Presidential Library began developing a one-of-a-kind experiential learning simulation called the Situation Room Experience. One of the pivotal issues in the Situation Room Experience regards the 25th Amendment to the Constitution of the United States. Recently we looked at how Sections 1 and 2 of the 25th Amendment were first invoked in 1973 and 1974 upon the resignations of Vice President Spiro Agnew and President Richard Nixon. This post, from Reagan Library Education Department staffer Brett Robert, examines Section 3 of the 25th Amendment, which was first invoked during President Reagan’s second term. The final post in the series looks at Section 4.
On July 13, 1985 President Ronald Reagan became the first President to invoke Section 3 of the 25th Amendment. Or did he? Like the Amendment requires, President Reagan sent a letter to the President pro tempore of the Senate, which was Senator Strom Thurmond of South Carolina at the time, and Speaker of the House, which was then Representative Thomas “Tip” O’Neill of Massachusetts. In the draft above there are a couple lines which indicate that President Reagan had some misgivings about using the Amendment for a brief surgery. “I do not believe that the drafters of this Amendment intended its applications to situations such as the instant one,” is a line from the draft that made it into the final letter.
Section 3 of the 25th Amendment of the Constitution of the United States of America:
“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.”
In fact, at the time some members of the Reagan administration made public statements that the letter, and the notification of ability to resume the powers, did not constitute a formal invocation of the 25th Amendment. “Mr. Reagan’s first letter and Mr. Speakes’ remarks seemed purposely ambiguous on whether the White House intended a formal invocation of the amendment. Publicly, Mr. Speakes declined to say that the amendment had been invoked, but privately White House officials acknowledged that it was being followed,” wrote Gerald Boyd of the New York Times on July 14, 1985. On the other hand, an article from David Hoffman published the same day in the Washington Post stated that “a White House official said this language in the letter followed the procedures of the 25th Amendment, but that Reagan aides wanted to include a caveat to avoid setting precedents.” While this second quote seems much less ambiguous about whether or not the administration was invoking or claiming to invoke the 25th Amendment, Hoffman notes further down in the article that “officials said the temporary transfer of power to Bush would affect only a limited number of duties,” which is not something the 25th Amendment allows. It would seem then, that the Administration, or at least some officials, believed at the time that they were not invoking the 25th Amendment.
In the late 1980’s the Miller Center at the University of Virginia, a center for study of the American Presidency, commissioned a group of experts to study the 25th Amendment. The commissioners were all esteemed experts, and included Senator Birch Bayh and retired Supreme Court Chief Justice Warren Burger. The commission had no legal authority, but the weight of the experience of its members meant it gained some national attention. In the course of creating their report they studied the historical record, conducted interviews with members of the Reagan administration and others, and consulted their extensive collective experiences to analyze how the 25th Amendment had been used and make recommendations about how they felt it should be used in the future. On page 10 of their report, which was released in 1988 and is available online here, they noted:
“In short, Section 3 creates a constitutional mechanism within the 25 Amendment for a the president to say, in effect, that ‘I am unable to serve temporarily. Rather than resign the office, I will temporarily remove myself and have the vice president serve as acting president. When I am able again to serve I will reclaim the presidency.’ This is the pattern Reagan followed in July 1985 during his surgery, despite the disclaimer in his letter. He and his associates clearly intended to invoke Section 3, as his then counsel Fred Fielding testified to this Commission. The disclaimer was simply a device to get Reagan to consider Section 3; and it worked.”
While this seems to argue that President Reagan’s letters to Tip O’Neill and Strom Thurmond in 1985 did constitute and invocation of the 25th Amendment, the same report states on page 14 that “regarding his colon cancer surgery, Reagan decided not to officially invoke Section 3, but to use its form nonetheless.”
Section 3 Review
In plain language, what Section 3 does is:
- Let the President put the Vice President in charge for a little while in case the President is too sick, injured, or otherwise unable to do the job.
- At a regular job you might ask a coworker to cover your shift if you were too sick to work. Section 3 is similar to having a shift covered, but it’s a more formal process by which the Vice President takes charge until the President is better.
- To do this, the President sends Congress a letter telling them the Vice President is acting President.
- Once the President is ready to work again, they just send Congress another note, letting them know the President is back.
If we include July 13, 1985, Section 3 has been invoked 3 times in United States History:
- July 13, 1985 when President Reagan had surgery on a polyp on his colon. For several hours that day Vice President George H.W. Bush was the first “Acting President” of the United States. By late evening, President Reagan transmitted the second letter to let Congress know he was back.
- June 29, 2002 President George W. Bush had a colonoscopy and invoked Section 3 to designate Vice President Dick Cheney as Acting President.
- July 21, 2007 during another colonoscopy President Bush again invoked Section 3 transferring the temporary powers of Acting President to Vice President Cheney.
- The National Commission on Presidential Disability and the Twenty-Fifth Amendment – A commission featuring Senators, journalists, lawyers, and public officials. Of particular note were the inclusion of Senator Birch Bayh of Indiana, who was one of the authors of the 25th Amendment and former Chief Justice of the Supreme Court of the United States Warren Burger. Their report on the 25th Amendement was published in 1988 and includes recommendations about when to invoke Sections 3 and 4.
For Students and Educators
Vocabulary and Key Terms
Senate President pro tempore
House of Representatives
Speaker of the House
Short Answer Questions
What problems does section 3 of the 25th Amendment Address?
How many times has section 3 been invoked and by which Presidents?
Who do the letters invoking Section 3 have to be sent to?
How does the President resume power?
Deeper Analysis Questions
Do you think the letter President Reagan sent in 1985 constituted an invocation of Section 3 the 25th Amendment? Support your opinion with evidence from the reading above, or from the resources linked to in the reading.
President George W. Bush used Section 3 of the 25th Amendment for routine procedures and invoked it only for a few hours. Some people argue that it damages the status of the President to have the Vice President take charge in such circumstances, while others feel it is important to always have someone acting as Commander-in-Chief in case a disaster strikes. State your position in this debate and support it with evidence and logic.