Presidential Succession and Delegation

in Case of Disability

[The following m em orandum discusses issues relating to presidential succession and delegation o f presidential pow er in the event of a tem porary disability of the President. It 

examines the mechanism established by the T w enty-Fifth Am endment by w hich the 

Vice President assumes the pow ers and duties o f the Office o f the President, and the 

conditions under w hich the President resumes his Office after his disability is ended. It 

also examines the circumstances in w hich the President may delegate his powers to 

other officials, including the Vice President, when it is not considered necessary or 

appropriate to invoke the provisions o f the T w enty-Fifth Amendment. It concludes 

that functions vested in the President by the C onstitution are generally not delegable 

and must be perform ed by him; how ever, any pow er vested in the President by statute 

may be delegated to subordinate officers, unless the statute affirmatively prohibits such 

delegation. Finally, the m emorandum briefly reviews the form and m ethod o f delegation. An appendix contains a historical summary o f prior presidential disabilities and the 

resulting effect on presidential authority.]

April 3, 1981

MEMORANDUM FOR TH E ATTORNEY GENERAL

As a result of the recent assassination attempt on President Reagan, 

this Office has researched several issues that relate to presidential succession and the delegation of presidential power in the event of a 

temporary disability of the President. This memorandum sets forth our 

conclusions on the relevant legal issues.

I. Presidential Succession

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

mechanism for presidential succession in the event that the President 

becomes unable to perform his constitutional duties. Succession may 

take place in two ways. First, if the President is able and willing to do 

so, he may provide for the temporary assumption of the powers and 

duties of his office by the Vice President by “transmit[ting] 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.” U.S. Const., Amend. XXV, §3. 

When the President transmits such a declaration, his powers and duties 

devolve upon the Vice President as Acting President1 until the Presi-

’There appears to be no requirement that the Vice President resign from his position as Vice 

President or take the President's oath of office to serve as “Acting President.” As a general rule, an

Continued

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dent transmits an additional written declaration stating that he has 

become able to perform his responsibilities.

Second, if the President is unable or unwilling to transmit a declaration of his inability to perform his duties, the Vice President will 

become Acting President 2 if the Vice President and a majority of the 

“principal officers of the executive departments” transmit to the President pro tempore of the Senate and the Speaker of the House a written 

declaration that the President is unable to discharge the powers and 

duties of this Office. See U.S. Const., Amend. XXV, §4. The term 

“principal officers of the executive departments” is intended to mean 

“the Cabinet,” although the term “Cabinet” has no precise legal definition.3

If, during the period in which the Vice President is Acting President, 

pursuant to the provisions of Section 4 of the Twenty-Fifth Amendment, the President submits to the President pro tempore of the Senate 

and the Speaker of the House a written declaration that no inability 

exists, he will resume the powers of his office unless, within four days, the 

Vice President and a majority of the Cabinet heads transmit an additional written declaration stating that the President is unable to discharge his powers and duties. At that point, Congress must decide the

official who is “acting” in a certain capacity need not vacate the office previously held or take the 

oath of office ordinarily taken by the person whose duties he has temporarily assumed This conclusion is supported by Presidential Inability and Vacancies in the Office o f Vice President: Hearings Before

the Subcomm. on Constitutional Amendments o f the Senate Comm, on the Judiciary, 88th Cong., 2d Sess 

215, 232 (1965); Presidential Inability: Hearings Before the House Comm, on the Judiciary, 89th Cong., 

1st Sess 87 (1965). See also J. Feerick, The Twenty-Fifth Amendment, 199 (1976) (Feerick) The rule 

as to resignation and/or taking the President’s oath appears to be different for those officials further 

down the line of succession See 3 U.S.C. § 19. This memorandum does not address the issues involved 

in the devolution of powers beyond the position of Vice President.

2 The Vice President will evidently continue to exercise the duties of Vice President while he 

serves as Acting President. The Vice President would, however, lose his title as President of the 

Senate. See 111 Cong. Rec. 3270 (1965) (Sen. Saltonstall); Feerick at 199

3 See S. Rep. No. 66, 89th Cong., 1st Sess. 2 (1966) We believe that the “principal officers of the 

executive departments,” for purposes of the Twenty-Fifth Amendment, include the Secretary of State, 

Secretary of Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of 

Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, 

Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, and 

Secretary of Education. That conclusion is supported by the legislative history See 111 Cong. Rec. 

7938 (1965) (Rep. Waggoner); id. at 7941 (Rep Poff); id. at 7944-45 (Rep. Whitener); id. at 7953, 7954 

(Rep. Gilbert). See also Feerick at 202-03; 5 U S.C. § 101. As a practical matter, and in order to avoid 

any doubt regarding the sufficiency o f any given declaration, it would be desirable to obtain the assent 

of a sufficient number of officials to satisfy any definition of the term “principal officers of the 

executive departments.”

There is some indication that acting heads of departments may participate in the presidential 

disability determination. Although the legislative history is conflicting, the House Judiciary Committee's report supports this conclusion, see H R. Rep No. 203, 89th Cong., 1st Sess. 3 (1965), as do the 

Senate debates, see 111 Cong. Rec. 15,380 (1965) (Sen. Kennedy); id. at 15,583 (1965) (Sen. Javits); and 

a leading commentator on the Amendment reaches the same conclusion. See Feenck at 203. Contra,

111 Cong Rec. 3284 (1965) (Rep. Hart). The contrary view proceeds on the assumption that such a 

decision should be made only by persons whom the President personally selected for his Cabinet. Such 

persons are presumably intimately familiar with the President and are of relatively equal status with 

the other decisionmakers.

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issue within specified time limits. See U.S. Const., Amend. XXV, §4, 

para. 2.4

II. Presidential Delegation

Under circumstances in which it is not considered necessary or 

appropriate to invoke the provisions of the Twenty-Fifth Amendment, 

it may nonetheless be desirable for the President to delegate certain 

powers to other officials, including the Vice President. Under statute, 3 

U.S.C. § 301, and under the Constitution, see Myers v. United States, 272 

U.S. 52, 117 (1926), the President has broad authority to delegate 

functions vested in him by law. At the same time, the Constitution and 

certain statutory provisions impose limits on the President’s power to 

confer his authority on subordinate officials. The nature and extent of 

those limits are considered in this section.

A. Constitutional Limitations on the President’s Power to Delegate His

Functions

As early as 1855, Attorney General Cushing articulated the general 

rule that the functions vested in the President by the Constitution are 

not delegable and must be performed by him. 7 Op. A tt’y Gen. 453, 

464-65 (1855). The Attorney General opined:

Thus it may be presumed that he, the man discharging 

the presidential office, and he alone, grants reprieves and 

pardons for offenses against the United States, not another 

man, the Attorney General or anybody else, by delegation 

of the President.

So he, and he alone, is the supreme commander-in-chief 

of the Army and Navy of the United States, and of the 

militia of the several States, when called into the actual 

service of the United States. That is a power constitutionally inherent in the person of the President. No act of

4 Under the Amendment, we believe that there is no requirement that the requisite written declarations of disability be personally signed by the Vice President and a majority of the heads of executive 

departments. The only requirements are that their assent to the declaration be established in a reliable 

fashion and that they direct that their names be added to the document. Moreover, the Vice President 

and the Cabinet heads may send separate declarations if necessary. See Presidential Inability: Hearings

Before the House Comm, on the Judiciary, 89th Cong., 1st Sess 79-80 (1965). Finally, we believe that 

under both §§ 3 and 4 of the Amendment, the transfer of authonty to the Vice President takes effect 

“immediately" when the declaration is transmitted or sent, and is not delayed until receipt of the 

document by the President pro tempore of the Senate and the Speaker of the House. Although the 

question is not free from doubt, the language and the history of the Amendment tend to support this 

conclusion. See S. Rep. No 66, 89th Cong., 1st Sess. 12-13 (1965); H.R. Rep. No 203, 89th Cong., 1st 

Sess. 13 (1965). But see H.R. Rep. No. 564, 89th Cong., 1st Sess. 3 (statement of Managers on the Part 

of the House to the effect that “after receipt of the President’s written declaration of his inability.. . . 

such powers and duties would then be discharged by the Vice President as Acting President”) The 

better construction would allow the devolution of powers “immediately” (the word used in § 4 of the 

Twenty-Fifth Amendment) upon transmittal No meaningful purpose would be served by awaiting the 

arrival of the document. The alternative construction allows a more rapid transition of presidential 

power when the national interests require it.

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Congress, no act even of the President himself, can, by 

constitutional possibility, authorize or create any military 

officer not subordinate to the President.

So he appoints and removes ambassadors and other 

officers of the United States, in the cases and with the 

qualifications indicated by the Constitution.

So he approves or disapproves of bills which have 

passed both Houses of Congress: that is a personal act of 

the President, like the vote of a Senator or a Representative in Congress, not capable of performance by a Head 

of Department or any other person.

A study prepared by this Office in the 1950s reaches the same 

conclusions. This study and our research suggest that the following are 

nondelegable functions o f the President:

1. The power to nominate and appoint the officers of the 

United States to the extent provided in Article II, § 2, 

clause 2 o f the Constitution.

2. The power to approve or return legislation pursuant to 

Article I, § 7, clauses 2 and 3, and the power to call 

Congress into special session or to adjourn it according 

to Article II, § 3.

3. The power to make treaties by and with the advice and 

consent o f the Senate. U.S. Const., Art. II, § 2, cl. 2. It 

should be noted, however, that the power to negotiate 

treaties and the power to enter into executive agreements may be delegated. See 7 Op. A tt’y Gen., supra, at 

465.

4. The power to grant pardons. U.S. Const. Art. II, 

§2, cl. 1.

5. The power to remove purely executive presidential appointees. This power is vested in the President as an 

incident o f his appointment power. Myers v. United

States, 272 U.S. at 119.

6. The power to issue executive orders. Only the President 

can issue formal executive orders and proclamations. He 

can, however, delegate the power to issue many orders 

which cover substantially the same subject matter as 

executive orders and proclamations as long as they are 

not so named.

7. The powers of the President as Commander-in-Chief of 

the Army and Navy. U.S. Const., Art. II, § 2, cl. 1. In 

view of Article I, § 8, clauses 12 and 13, which state 

that Congress shall have the power to raise and support

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the Army and to provide and maintain a Navy, many of 

the President’s powers as Commander-in-Chief are 

statutory in part. To conclude that the President may 

not delegate his ultimate constitutional responsibilities as 

Commander-in-Chief is not to suggest that he is the 

only officer of the government who may make military 

decisions in time of emergency, when immediate response may be necessary. The President may make 

formal or informal arrangements with his civilian and 

military subordinates, in order to ensure that the chain 

of command will function swiftly and effectively in time 

of crisis. Of course, every military officer must be subordinate to the President.

B. Statutory Limitations on the President’s Power to Delegate His

Functions

The foregoing discussion sets forth the general rule that the President 

may not delegate inherent powers that are conferred on him by the 

Constitution. On the other hand, he may generally delegate powers that 

have been conferred on him by Congress. Congress has so provided in 

3 U.S.C. § 301, which states:

The President of the United States is authorized to 

designate and empower the head of any department or 

agency in the executive branch, or any official thereof 

who is required to be appointed by and with the advice 

and consent of the Senate, to perform without approval, 

ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any 

function which such officer is required or authorized by 

law to perform only with or subject to the approval, 

ratification, or other action of the President: Provided,

That nothing contained herein shall relieve the President 

of his responsibility in office for the acts of any such head 

or other official designated by him to perform such functions. Such designation and authorization shall be in writing, shall be published in the Federal Register, shall be 

subject to such terms, conditions, and limitations as the 

President may deem advisable, and shall be revocable at 

any time by the President in whole or in part.

Congress has further provided, in 3 U.S.C. § 302, that:

The authority conferred by this chapter shall apply to 

any function vested in the President by law if such law

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does not affirmatively prohibit delegation of the performance of such function as herein provided for, or specifically designate the officer or officers to whom it may be 

delegated. This chapter shall not be deemed to limit or 

derogate from any existing or inherent right of the President to delegate the performance of functions vested in 

him by law, and nothing herein shall be deemed to require express authorization in any case in which such an 

official would be presumed in law to have acted by authority or direction of the President.

As a result of these statutes, the President is authorized to delegate 

any power vested in him by statute unless the statute “affirmatively 

prohibits] delegation.” In our view, a statute should be construed as an 

“affirmative” prohibition of delegation only if it prohibits delegation 

expressly or by unmistakable implication. The purpose of §§ 301 and 

302 is to facilitate the functioning of the Executive by specifically 

authorizing delegation in the great majority of cases. To this end, § 301 

states a general rule in favor of delegation. In light of the breadth of 

this general rule, the exception in § 302 should be narrowly construed. 

The same inference can be drawn from the fact that Congress took care 

in § 302 not to derogate from any “existing or inherent right of the 

President to delegate the performance of functions vested in him by 

law.”

Statutes which do expressly or by unmistakable implication prohibit 

delegation are subject to the possible constitutional objection that the 

power to delegate is inherent in the Executive and may not be restricted by Congress. The issue is a difficult one and has never been 

resolved in court. In our view, the wiser course is to comply with any 

clear congressional intention to prohibit delegation, in order to avoid 

testing the limits of this constitutional question, unless circumstances 

imperatively require delegation.

In the brief time we have had to review the matter, we have discovered only a very few statutes that expressly or by unmistakable implication prohibit delegation. W hat follows is a description of categories of 

statutes that fall or may fall within this general class.

1. Statutes Explicitly Prohibiting Delegation

The clearest cases are those in which the statute explicitly prohibits 

delegation. An example is found in the Export Administration Act of 

1979, 50 U.S.C. § 2403(e) (Supp. Ill 1979), which provides that:

The President may delegate the power, authority, and 

discretion conferred upon him by this A ct to such departments, agencies, or officials of the Government as he may 

consider appropriate, except that no authority under this

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Act may be delegated to, or exercised by, any official of 

any department or agency the head of which is not appointed by the President, by and with the advice and 

consent of the Senate. The President may not delegate or 

transfer his power, authority, and discretion to overrule 

or modify any recommendation or decision made by the 

Secretary [of Commerce], the Secretary of Defense, or 

the Secretary of State pursuant to the provisions of this 

Act.

2. Statutes Conferring Nondelegable Functions

An unmistakable congressional intent to prohibit delegation may also 

be inferred from statutes that impose on the President a duty or power 

to exercise a nondelegable function. For example, it is commonly 

thought that only the President may issue an executive order or proclamation. Statutes that authorize the President to take an action, but 

require him to act by way of executive order or proclamation, can 

therefore be read as precluding delegation. An example is found in 22 

U.S.C. § 441(a):

Whenever the President . . . shall find that there exists a 

state of war between foreign states, and that it is necessary to promote the security or preserve the peace of the 

United States or to protect the lives of citizens of the 

United States, the President shall issue a proclamation 

naming the states involved; and he shall, from time to 

time by proclamation, name other states as and when they 

become involved in the war.

3. Statutes Implicitly Prohibiting Delegation

A broad range of statutes confer powers on the President but do not 

state in terms or in the legislative history whether those powers are 

delegable. In some instances, the character or importance of the powers 

in question, or other special circumstances, may constitute a sufficient 

indication of a legislative intent to prohibit delegation.

In the brief time available, we have been unable to reach any firm 

conclusions regarding particular statutes in this category. In general, it 

would appear that statutory powers that have been exercised by the 

President himself on a consistent and longstanding basis are more likely 

than others to be held nondelegable. An example might be the President’s statutory power to enter into or terminate trade agreements with 

certain nations under 19 U.S.C. § 1351.

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A second special circumstance that can give rise to an inference of 

nondelegability occurs when Congress gives authority to an agency but 

subjects that authority to a requirement of presidential approval. In this 

circumstance, it can be argued that a delegation of the President’s 

approval authority back to the agency would subvert the evident legislative intent to assure review by someone outside the agency, while a 

delegation to anyone else would conflict with the congressional intent 

to centralize primary administrative responsibility in the agency. For an 

example of such a statute, see § 12(k) of the Securities Exchange Act of 

1934, 15 U.S.C. § 781(k).5

III. Delegable Fumctioms

All remaining functions o f the President may be delegated to subordinate officers. Many statutes explicitly authorize delegation. See, e.g., 22 

U.S.C. § 2381 (delegation of certain foreign affairs powers). In the 

absence of specific authorization, the general delegation statute, 3 

U.S.C. §§301, 302, explicitly authorizes delegation except where precluded by statute. It is beyond the scope of this memorandum to 

describe the full extent o f the presidential powers and responsibilities 

that may be delegated.6 In general, powers which may be delegated 

include those of approval, authorization, and assignment; powers to 

establish and convene certain administrative commissions, to designate 

responsible officers, and to make certain factual determinations; powers 

to direct that certain actions be taken, to fix compensation of officers, 

to prescribe certain rules and regulations, and to make recommendations or reports.

It bears repetition that the President may not delegate his power to 

delegate his own functions. This is, in our view, a function that is 

constitutionally vested in the President personally. The President may 

delegate his powers if he is capable of a conscious decision to do so. If, 

however, he is incapable o f such a decision, delegation cannot occur. If 

such a situation continues for a substantial period of time, it would 

appear desirable to initiate procedures for presidential succession under 

the Twenty-Fifth Amendment.7

5 We emphasize that the above examples are entirely tentative; it may well be that, upon further 

examination of the statutes and their legislative histories, this Office would conclude that Congress did 

not intend to prohibit delegation.

6 For a description of the President’s general authonty, see President's Advisory Council on 

Executive Organization, The Powers and Responsibilities of the President (1970).

7 It might be possible for the President to delegate his powers contingent upon the occurrence of a 

specified event such as a certification by the President’s personal physician that the President is 

temporarily incapable of making a conscious decision. We would emphasize, however, that this 

procedure should not be used if its effect is contrary to the intent of the procedures for presidential 

succession contained in the Twenty-Fifth Amendment.

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IV. Form and Method of Delegation

Whenever a presidential function or power is delegable, it may be 

delegated to the head of any department or agency in the Executive 

Branch, or any official thereof, if the official is appointed with the 

advice and consent of the Senate. 3 U.S.C. §301. By statute, such a 

delegation is ordinarily accomplished through the preparation and publication of a written order or memorandum. The relevant document is 

normally signed by the President personally; but there is no express 

statutory requirement to that effect. In our opinion, the relevant statutory requirements are satisfied as long as the President actually makes 

the delegation in question and causes an appropriate written memorial 

to be prepared and published. He need not sign the document by his 

own hand. See United States v. Fletcher, 148 U.S. 84-92 (1893); 7 Op. 

Att’y Gen. at 472-73 (1855); 22 Op. A tt’y Gen. 82, 84 (1898). Moreover, the statute does not purport to restrict the President’s constitutional power to delegate his powers and functions. 3 U.S.C. § 302. We 

believe that a President may determine in an exigent circumstance that 

it is necessary to delegate a power or function without immediate 

compliance with the normal formal requisites (i.e., publication of a 

written document). Such a delegation is effective if it is necessary to 

enable the President to discharge his constitutional duty.

T h e o d o r e B. O l s o n

Assistant Attorney General

Office o f Legal Counsel

Attachment

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APPENDIX

P r io r P r e s i d e n t i a l D i s a b i l i t i e s

This is a summary of prior presidential disabilities and the resulting 

effect on presidential authority.1

1. James Madison suffered from a severe fever in the summer of 1813 

in the midst of disputes with Congress on how to pay for the War of 

1812. I. Brant, James Madison: Commander-in-Chief, 1812-1836, at 

184-94 (1961). Daniel Webster reported at one point that Madison was 

too weak to read resolutions brought to his bedside. Id. at 186-87. Both 

Houses of Congress became “engrossed” for over a month in speculation on the succession,2 since the Vice President was aged and there 

was a vacancy in the position of President pro tempore of the Senate. J. 

Feerick, The Twenty-Fifth Amendment 4-5 (1976) (Feerick). Madison 

recovered, however, and no legislation was passed nor were formal 

arrangements for the delegation or transfer of power implemented.

2. William Henry Harrison was inaugurated on March 4, 1841, and 

died of pneumonia on April 4, 1841. His illness was so short that the 

question of inability apparently did not arise.3

3. James A. Garfield was wounded on July 2, 1881, by an assassin 

and died 80 days later on September 19, 1881. Vice President Chester 

A. A rthur did not act in his stead. Arthur refused to do so because of a 

fear, shared by many constitutional scholars of the time, that once he 

had assumed the powers and duties of the office, they would “devolve 

on the Vice President” permanently, leaving him unable to turn the 

reins back to the President. U.S. Const., Art. II, § 1, cl. 6. See S. Rep.

M aterial consulted included the N.Y. Times, S. Rep. No. 66, 89th Cong., 1st Sess. (1965), and 

hearings held in 1958. Presidential Inability: Hearings on S.J. Res. 100, S.J. Res. 133, S.J. Res. 134, S.J.

Res. 141, S.J. Res. 143, S.J Res. 144, S. 238, and S. 3113 Before the Subcomm. on Constitutional

Amendments o f the Senate Comm, on the Judiciary, 85th Cong., 2d Sess. (1958) [hereinafter cited as 1958

Hearings]. A list of articles on presidential inability can be found in the 1958 Hearings, at 41-42.

2 The first succession act was passed in 1792. Act of March 1, 1792, §§9-11, 1 Stat. 239. 

Unsuccessful efforts to change this statute occurred in 1820, 1856, and 1881.

3 When Harrison died, Secretary of State Daniel Webster questioned whether the Constitution 

meant that Vice President John Tyler became “Acting President,” rather than the President. Tyler 

disagreed and took the oath as President, thus establishing the MTyler precedent” that the Vice 

President does succeed to the Office o f the President when the prior occupant dies. 1958 Hearings at 

149.

The deaths of Zachary Taylor (July 9, 1850) and Abraham Lincoln (April 15, 1865) were apparently so swift that their Vice Presidents (Millard Fillmore, Andrew Johnson) assumed control without 

trouble. Feerick at 7-8.

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No. 66, 89th Cong. 1st Sess. 6 (1965) (1965 Senate Report). Although 

the entire Cabinet believed Garfield to be unable to carry out his 

duties,4 four of them, including the Attorney General, agreed with 

Arthur’s analysis. Secretary of State James G. Blaine was in fact criticized for attempting to usurp presidential powers during Garfield’s 

lengthy illness. 1958 Hearings at 149-50.5

4. Grover Cleveland had two major operations for cancer of the 

mouth in July 1893. He told almost no one, including Vice President 

Adlai Stevenson. The two operations took place on a friend’s yacht, 

with Cleveland unconscious and strapped to a chair propped against the 

mast. Feerick at 11-12. The complete secrecy was due to fears that the 

country might suffer an economic panic if it knew the President had 

cancer. The truth was apparently suppressed until 1917. Feerick at 12.6

5. William McKinley was wounded on Friday, September 6, 1901. 

He underwent emergency surgery and his doctors issued optimistic 

statements about his recovery. So positive was the outlook that Vice 

President Theodore Roosevelt and the Cabinet members who had gathered in Buffalo over the weekend began to disperse. M. Leech, In the 

Days of McKinley 598-99 (1959). “[T]he Vice-President was so firmly 

convinced that the emergency was over that he went to join his family 

at a camp in the Adirondacks, twelve miles from telegraph or telephone.” Id. at 599. When McKinley began to fail, a guide was sent up 

into the mountains to fetch Roosevelt. Although he rushed back, 

Roosevelt arrived to take the oath of Office 12 hours after McKinley’s 

death on September 14.

6. Woodrow Wilson was incapacitated from a stroke for about eight 

months of his second term. At no time did Vice President Thomas R. 

Marshall attempt to take over. See 1958 Hearings at 19. The hesitation 

was due to a fear that such action would be viewed as an effort to oust 

Wilson permanently. When he recovered, Wilson forced Secretary of 

State Lansing, who had called Cabinet meetings and suggested that 

Marshall take over as Acting President, to resign, charging him with 

disloyalty. Id.

1. Franklin Roosevelt was in declining health during his last year in 

office, and died on April 12, 1945. Vice President Harry S. Truman had 

had only two conversations with Roosevelt since the inauguration, 

neither dealing with disability. Feerick at 17. Perhaps as a reaction to 

this, Truman supported a new succession statute, Act of June 25, 1948, 

Pub. L. No. 80-771, 62 Stat. 672, 677-78 (1948).

4 Garfield was able to conduct only one minor piece of business—the signing of an extradition 

paper Feerick at 9

8 Arthur, who succeeded Garfield, suffered from an increasingly debilitating kidney disease while in 

office. Although he gradually reduced his schedule, he does not appear to have become completely 

incapacitated. Feerick at 10-11.

6 It was the death of Cleveland’s first Vice President, Thomas A. Hendricks, in 1885, while 

Congress was out of session, which accelerated passage of the Presidential Succession Act, Pub. L. 

No. 49-1, 24 Stat. 1 (1886)

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8. Dwight D. Eisenhower suffered three major illnesses while in 

office—a heart attack (1955), ileitis (1956), and a “mild” stroke (1957). 

From the first, Vice President Richard Nixon consulted with the Cabinet and developed a procedure for relaying important matters to the 

President. A White House request for an opinion on the temporary 

delegation of presidential power was not acted upon because Attorney 

General Brownell felt there were sufficient legal arrangements in place 

to handle day-to-day operations.

Eisenhower was very troubled by the implications of the disability 

problem during each of his illnesses. He asked the Department of 

Justice to study the problem and recommend a solution, urged Congress to act, and entered into an informal agreement with Mr. Nixon. 

Feerick at 20-22. The agreement provided that:

1. In the event of inability the President would—if 

possible—so inform the Vice President, and the Vice 

President would serve as Acting President, exercising the 

powers and duties of the office until the inability had 

ended.

2. In the event o f an inability which would prevent the 

President from so communicating with the Vice President, the Vice President, after such consultation as seems 

to him appropriate under the circumstances, would decide 

upon the devolution of the powers and duties of the office 

and would serve as Acting President until the inability 

had ended.

3. The President, in either event, would determine 

when the inability had ended and at that time would 

resume the full exercise of the powers and duties of the 

Office.

1965 Senate Report at 7 .7 Although Congress did hold hearings, no 

permanent action was taken.8

9. Lyndon B. Johnson was hospitalized four times, the first time 

being for a major bout with the flu (January 23-27, 1965).9 In October 

1965, Johnson was hospitalized for gall bladder surgery.10 He was

7See also N.Y. Times* March 4, 1958, at 1, col. 2. Presidents Kennedy and Johnson entered into 

similar agreements with their Vice Presidents. 1965 Senate Report at 7. N.Y. Times, Jan. 28, 1965, at 

13, col. 1. The Johnson-Humphrey agreement was identical to the Eisenhower-Nixon agreement. The 

Kennedy agreement differed only in that it urged the Vice President to consult with the Cabinet and 

the A ttorney General i4as a matter of wisdom and sound judgment.” 1965 Senate Report at 7.

8See 1958 Hearings, supra, and Hearings before the Special Subcommittee to Study Presidential

Disability o f the House Committee on the Judiciary, 84th Cong., 2d Sess. (1956).

9 At the time, Vice President Hubert H Humphrey stated that there had been discussions of when 

he would take over and a copy of the Johnson-Humphrey accord was made available to the press on 

January 28. See note 7, supra, and text.

10 The accord was again noted by the press and columnist A rthur Krock urged the states to ratify

the Twenty-Fifth Amendment.

102
anesthetized for three to four hours, after which Press Secretary 

Moyers announced that Johnson was again able to make presidential 

decisions.11

The same pattern was repeated in November 1967, when Johnson 

underwent simultaneous surgery for a polyp on his vocal cord and 

repair of a ventral hernia. He was anesthetized for about an hour and a 

half. Note was made of the agreement that could make Humphrey 

“Acting President” and columnist Tom Wicker urged that the TwentyFifth Amendment be ratified.

In December 1968, Johnson was again hospitalized for the flu. The 

papers, however, said little other than that he worked on government 

papers on one day of his stay.

10. Richard M. Nixon was hospitalized from July 12-20, 1973, for 

viral pneumonia. The President’s press office said that he would be able 

to do necessary work and that he was not sick enough to require the 

Vice President to make special arrangements. In an interview, Vice 

President Spiro T. Agnew said that there was no agreement between 

the President and him on what to do in the event of Nixon’s disability 

and that the issue had never been discussed.

Although there were persistent rumors about Nixon’s health during 

the months prior to his resignation, the only White House announcement was an acknowledgment that the President suffered from phlebitis. The operation on his leg did not occur until September 23, 1974, 

after his resignation.

11. Jimmy Carter’s scheduled surgery for hemorrhoids in late December 1978, was cancelled. Preparations for the Vice President to 

assume power under § 3 of the Twenty-Fifth Amendment were also 

cancelled.

L a r r y L . S i m m s

Acting Assistant Attorney General

Office o f Legal Counsel

11 Citing recent history, Johnson had urged Congress to act on the disability problem in his State of 

the Union address in January, 1965. The proposed Twenty-Fifth Amendment was sent to the states in 

July 1965.

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