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 declara
tion 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 Presi
dent 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 defini
tion.3
If, during the period in which the Vice President is Acting President,
pursuant to the provisions of Section 4 of the Twenty-Fifth Amend
ment, 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 addi
tional written declaration stating that the President is unable to dis
charge 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 conclu
sion is supported by Presidential Inability and Vacancies in the Office of Vice President: Hearings Before
the Subcomm. on Constitutional Amendments of 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 of 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 Commit
tee'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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