Birch Evans Bayh, architect of the 25th (and 26th) amendments to the United States Constitution.

At just 34 years old, Birch Evans Bayh, Jr. had already done well for himself politically.  Having earned election to the Indiana state legislature, in 1962 Bayh decided to move up in the political world - way up - challenging three-term incumbent Senator Home Capehart for his seat.  Reflective of the youth and vigor which two years earlier helped John Kennedy win the White House, Bayh would upset the nationally prominent Capehart by a razor-thin margin, becoming among the youngest Senators in United States history.

Seen as an "up and comer," Bayh was given a plum assignment for any first-term Senator:  a seat on the powerful Senate Judiciary Committee.  Upon colleague Estes Kefauver's death in August 1963, Bayh approached Judiciary Committee chairman James Eastland and requested if he could take over Kefauver's chairmanship of the Subcommittee on Constitutional Amendments.  Eastland, who had been thinking of terminating the committee entirely, instead saw an opportunity to give Bayh some seasoning as a Senator, and agreed to appoint him as chairman in an effort to groom him.  Bayh would respond by resurrecting a subcommittee which had essentially been left for dead, ultimately serving as the architect of not one but two constitutional amendments.

Studying previous efforts to address presidential succession and disability, Senator Bayh determined that the ABA assessment of the subject was correct:  a constitutional amendment would be needed to resolve it.  Particularly, Bayh envisioned that a constitutional amendment should be drafted which addressed five particular points:

  1. To confirm the Tyler Precedent, stating that in the event of a vacancy in the office of the President, the Vice President would succeed to the office.
  2. To establish a means of filling vacancies in the office of Vice President.
  3. Establishing a means by which a President could voluntarily transfer executive authority to a Vice President in anticipation of a disability.
  4. Establishing a means by which a President could be acted for should he be unable to voluntarily transfer executive authority.
  5. Establishing a means under which a President would return to his service after a period of disability - and to resolve conflicts if others determined that the President was not yet able to do so.

Indiana Senator Birch Bayh (left), meeting with President Lyndon Johnson in the Oval Office.

Senate Joint Resolution 139

Seeing the Kefauver version of the amendment die along with him, in the 88th Congress Bayh would submit his own bill to address these points, introducing it as Senate Joint Resolution 139.  And while Kefauver's proposal seemed inadequate to fully address the five points Bayh had identified, Bayh's own proposal if anything had gone too far in doing so:

Section 1.  In case of the removal of the President from office, or of his death or resignation, the Vice President shall become President for the unexpired portion of the then current term.  Within a period of thirty days thereafter, the new President shall nominate a Vice President who shall take office upon confirmation by both Houses of Congress by a majority of those present and voting.

Section 2.  In case of the removal of the Vice President from office, or of his death or resignation, the President, within a period of thirty days thereafter, shall nominate a Vice President who shall take office upon confirmation by both Houses of Congress by a majority vote of those present and voting.

Section 3.  If the President shall declare in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.  If the President does not so declare, the Vice President, if satisfied that such inability exists, shall, upon the written approval of a majority of the heads of the executive departments in office, assume the discharge of the powers and duties of the office as Acting President.

Section 5.  Whenever the President makes public announcement in writing that his inability has been terminated, he shall resume the discharge of the powers and duties of his office on the seventh day after making such announcement, or at such earlier time after such announcement as he and the Vice President may determine.  But if the Vice President, with the written approval of a majority of the heads of executive departments in office at the time of such announcement, transmits to the Congress his written declaration that in his opinion the President's inability has not terminated, the Congress shall thereupon consider the issue.  If the Congress is not then in session, it shall assemble in special session on the call of the Vice President.  If the Congress determines by concurrent resolution, adopted with the approval of two-thirds of the Members present in each House, that the inability of the President has not terminated, thereupon, notwithstanding any further announcement by the President, the Vice President shall discharge such powers and duties as Acting President until the occurrence of the earliest of the following events:  (1) the Acting President proclaims that the President's inability has ended, (2) the Congress determines by concurrent resolution, adopted with the approval of a majority of the Members present in each House, that the President's inability has ended, or (3) the President's term ends.

Section 6.  (a)(1)  If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the office of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President, shall act as President:  Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Postmaster General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health, Education and Welfare, and such other heads of executive departments as may be established hereafter and in order of their establishment.

(a)(2)  The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this section.

(a)(3)  To qualify under this section, an individual must have been appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, or inability of the President and Vice President, and must not be under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon him.

(b)  In case of the death, resignation, or removal of both the President and Vice President, his successor shall be President until the expiration of the then current Presidential term.  In case of the inability of the President and Vice President to discharge the powers and duties of the office of President, his successor, as designated in this section, shall be subject to the provisions of Sections 3, 4 and 5 of this article as if he were a Vice President acting in case of disability of the President.

(c)  The taking of the oath of office by an individual specified in the list of paragraph (1) of subsection (a) shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.

(d)  During the period that any individual acts as President under this section, his compensation shall be at the rate then provided by law in the case of the President.

Section 7.  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Emanuel Celler, who would sponsor the House version of what became the 25th Amendment, House Joint Resolution 1.

The 89th Congress Finally Gets It Done

The 1964 election of President Lyndon Johnson (and more specifically, of Minnesota Senator Hubert Horatio Humphrey, Jr. as Vice President) would temporarily set minds at ease with respect to matters of presidential succession and disability.  But while in the past such an event would have stopped momentum for reform in this area, Senator Bayh pressed on.  And surprisingly, he would be aided by none other than President Johnson himself.  In his 1965 State of the Union address, Johnson advised that

Even the best of government is subject to the worst of hazards.  To that end, I will propose laws to insure the necessary continuity of leadership should the President be disabled or die.

The impact of this statement couldn't in Bayh's mind be overstated; Johnson had the most impressive legislative credentials of any President in American history, and as a result Bayh was sure the President's support of the amendment effort would result in it becoming reality.  Shortly thereafter legislation was proposed in both houses of the 89th Congress and, as a symbolic gesture signifying the priority given to the proposed amendment, it would be numbered as "House Joint Resolution 1" and "Senate Joint Resolution 1," respectively:

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 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 3.  If the President declares in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.  If the President does not so declare, and the Vice President with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits to the Congress his written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Section 5.  Whenever the President transmits to the Congress his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President, with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits within two days to the Congress his written declaration that the President is unable to discharge the powers and duties of his office.  Thereupon Congress will immediately decide the issue.  If the Congress determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of the office, the Vice President shall continue to discharge the same as Acting President; otherwise the President shall resume the powers and duties of his office.

While the House and Senate quickly chose to act on the amendment, this original wording of the legislation was seen as needing revision, particularly with respect to Sections 3, 4 and 5.  While the fundamentals of the amendment were almost universally acceptable, some felt the amendment needed "polish," so its language would more closely resemble that used in the original Constitution as well as prior amendments.  Working out the details in a conference committee, the report of the committee (and with it, the amendment itself) would be approved by a 68-5 vote in the United States Senate.  On April 13, 1965, the House of Representatives would follow suit by an overwhelming majority of 368-29.  For the first time and after 179 years, a clear presidential succession and disability protocol existed; now it would be up to state legislatures to make it law.