Presidential Succession Act

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The Presidential Succession Act of 1947 (3 U.S.C. § 19) establishes the line of succession to the office of President of the United States in the event that neither a President or Vice President is able to "discharge the powers and duties of the office."

The authority for the Congress to enact such a law is twofold: Article II, section 1, clause 6 of the United States Constitution and Section 3 of the Twentieth Amendment to the Constitution.

Contents

[edit] History

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[edit] Presidential Succession Act of 1792

[edit] Provisions of the Act

The Presidential Succession Act of 1792 was adopted in as Sections 9 and 10 of Pub.L. 1-240. The act declared that, in the event of the removal, resignation, or death of both the President and Vice President, the President pro tempore of the United States Senate would act as President, followed by the Speaker of the United States House of Representatives.

[edit] Potential implementation

While the 1792 act was never implemented, and no one below the Vice Presidency has ever succeeded to the presidency, there were a number of instances where, had the President died, resigned, or been removed from office, the President Pro Tempore would have become the Acting President. These include:

The closest the act came to implementation occurred in 1868 however, when President Andrew Johnson came one vote short in the Senate of being removed from office after being impeached by the House of Representatives. Had he been convicted and removed from office, Benjamin Franklin Wade, President pro tempore of the Senate, would have been Acting President until a special Presidential election had been held.[1]

[edit] Presidential Succession Act of 1886

[edit] Provisions of the Act

The death of Vice President Thomas Andrews Hendricks on November 25, 1885 marked the fourth time in 20 years that the Vice Presidency had been left vacant because of death or succession. In 1886, a new version of the act was passed by Congress under Pub.L. 24-1, removing the Congressional officers from the list and replacing them with the members of the Cabinet. The order was determined by the order in which each cabinet department had been created - with the Secretary of State being first in line after the Vice President. As six former Secretaries of State had gone on to be elected President in their own right, and as only one Congressional leader (James K. Polk, a Speaker of the House) had done so to that time, the change was widely accepted.

[edit] Potential implementation

As with the original 1792 act, the act of 1886 was never implemented during its 61 years, and no one below the Vice Presidency ever succeeded to the presidency, but again there were instances where, had the President died, resigned, or been removed from office, the Secretary of State would have become Acting President. These include:

[edit] Current Act (1947)

[edit] Provisions of the Act

Following World War II and the death of President Roosevelt, President Truman lobbied for a revision of the law, and ultimately the current act was passed.

The new law restored the Congressional officers to places directly after the Vice President, but switched their order from the 1792 Act, placing the House Speaker first and the President Pro Tempore second. The Cabinet officers then followed, again in the order in which their respective departments were created with one exception: the Secretary of Defense (a department created in 1947 following a merger of the Departments of War and Navy) was placed fifth in the overall order, directly after the Secretary of the Treasury. This placed the Defense Department in the place that would have been held by the Department of War, its predecessor.

A common story (perhaps apocryphal) holds that President Truman proposed to move the Speaker of the House ahead of the President Pro Tempore of the Senate in the line of succession because of the president's close friendship with Sam Rayburn, who was Speaker at that time. President Truman's special message to Congress when he proposed the succession change mentioned only that he did not feel the power to nominate his successor (at the time, one of his cabinet members would fill in following a vacancy in both the offices of President and Vice President) "should rest with the Chief Executive." Thus, he proposed adding the Speaker and President Pro Tempore ahead of cabinet members since he believed "that the Speaker is the official in the Federal Government, whose selection next to that of the President and Vice President, can be most accurately said to stem from the people themselves."

[edit] Potential implementation

To date, as with its predecessors, the 1947 act has yet to be implemented. However, there have been instances where it would have been if the President had died, resigned, or been removed from office. For example: Following Spiro Agnew's resignation as Vice President in 1973, and the following year in the interim between Gerald Ford's succession to the presidency and the confirmation of Vice President Nelson Rockefeller. In both cases, this was avoided by the ability to fill Vice Presidential vacancies.

During the September 11, 2001 terrorist attack, several persons holding offices in the line of succession (among them Speaker Dennis Hastert and Senate President Pro Tempore Robert Byrd) were taken to "secure locations" in order to guarantee that at least one officer in the line of succession would survive the attacks.

The 1947 act makes no provision for the unlikely event that all eligible persons on the succession list perish before one can assume the presidential powers and duties.

[edit] Revisions since 1947

The 1947 act has been modified several times with the addition of new cabinet positions, but the creation of the Department of Homeland Security in 2002 once caused controversy that delayed its secretary from being placed in the succession order.

Many in Congress felt the Secretary should be placed not at the bottom of the order as is the tradition, but higher in the order - the rationale being that, as the officer responsible for disaster relief and security, the Secretary would be more capable of acting as President than, say, the Secretary of Housing and Urban Development. Most commonly, it was proposed that he be granted the position held by the Secretary of the Navy prior to the formation of the Department of Defense. In the 109th Congress several bills to that effect were introduced.

The matter remained unresolved until the renewal of the Patriot Act in late 2005 and early 2006. On March 9, 2006, the Presidential Succession Act was amended to add the Secretary of Homeland Security after the Secretary of Veterans Affairs.[2]

[edit] Text of current law

§ 19. Vacancy in offices of both President and Vice President; officers eligible to act.

(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 Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.
(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 subsection.
(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.
(c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that -
(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and
(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.
(d)
(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer 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, 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, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.
(2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.
(3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.
(e)
(1) Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution. Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, inability, or failure to qualify, of the President pro tempore, and only to officers not under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon them.
(2) 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.

[edit] Twenty fifth Amendment

Following the assassination of President John Kennedy in 1963 and fully now in the Cold War mindset, Congress submitted, and the states quickly ratified, the Twenty fifth Amendment to the Constitution, which permitted the President to nominate a Vice President should the Vice Presidency become vacant.

While not directly impacting the Presidential Succession Act per se, Section 2 of the amendment has significantly reduced the likelihood (barring catastrophic circumstances) of a Speaker of the House of Representatives being needed to act as President.

Had the Twenty fifth Amendment not been passed, Democrat Carl Albert would have become Acting President upon Richard Nixon's resignation (under 3 U.S.C. § 19(c)) and served as Acting President until the end of Nixon's term.

[edit] Proposals for reform

The September 11, 2001 attacks raised again the unlikely "doomsday" scenario in which every person in the line of presidential succession is killed within a short time. This has led to various proposals, most involving placing the governors of the fifty states in the line of succession behind the cabinet, either according to an alphabetical listing of the states' names, the population of the states (from greatest to least), or order in which the states entered the union.[citation needed]

On January 19, 2007, Rep. Brad Sherman introduced H.R. 540, the Presidential Succession Act of 2007. If enacted, H.R. 540 would add five ambassadors as new positions in the line of succession, after the Cabinet members: the ambassadors to the United Nations, Great Britain, Russia, China, and France.[3] On February 2, the bill was referred to Subcommittee on the Constitution, Civil Rights, and Civil Liberties, and as of September 11, 2007 no further action on the bill has taken place.

[edit] Constitutionality of 1947 Act

There are also concerns regarding the Constitutionality of having members of the Congress in the line of succession. Article II, Section 1, Clause 6 (Succession Clause) of the Constitution specifies that only an "Officer" of the United States may be designated as a contingent successor. Yale Law School Professor Akhil Reed Amar says the current Presidential Succession Act is "a disastrous statute, an accident waiting to happen." [1] In testimony before the Senate Judiciary Committee on September 16, 2003 Miller Baker stated:

The 1947 Act is probably unconstitutional because it appears that the Speaker of the House and the President pro tempore of the Senate are not “Officers” eligible to act as President within the meaning of the Succession Clause. This is because in referring to an “Officer,” the Succession Clause, taken in its context in Section 1 of Article II, probably refers to an “Officer of the United States,” a term of art under the Constitution, rather than any officer, which would include legislative and state officers referred to in the Constitution (e.g., the reference to state militia officers found in Article I, Section 8). In the very next section of Article II, the President is empowered to “require the Opinion, in writing, of the principal Officer in each of the executive Departments” and to appoint, by and with the advice and consent of the Senate, “Officers of the United States.” These are the “Officers” to whom the Succession Clause probably refers. This contextual reading is confirmed by Madison’s notes from the Constitutional Convention, which reveal that the Convention’s Committee of Style, which had no authority to make substantive changes, substituted “Officer” in the Succession Clause in place of “Officer of the United States,” probably because the Committee considered the full phrase redundant.[4]

Article I, Section 6, Clause 2 has been referenced as evidence that members of the Congress can not be in the Presidential line of succession.[5] That clause (a.k.a., Incompatibility Clause) states:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. [2]

This doesn't mean that the Presidential Succession Act of 1947 would be declared Unconstitutional if it came before a court. In The Political Question of Presidential Succession (48 Stan. L. Rev. 155 (1995)) Steven G. Calabresi suggests that this Act's Constitutionality could be ruled to be a Political Question.

[edit] Next in line

The following people have been next in line for the powers and duties of the Presidency of the United States (i.e., to become Acting President, in the event of the death, resignation, or removal of the President and the Vice President of the United States):

[edit] After the original Presidential Succession Act of 1792

# Name Office Title Home State - Party Date Became Next in Line Date Ended How Became Next in Line President(s)
1 William Harris Crawford President pro tempore of the Senate Georgia - (D-R) April 20, 1812 March 4, 1813 upon death of V.P. George Clinton Madison
2 Langdon Cheves Speaker of the House South Carolina - (D-R) November 23, 1814 November 25, 1814 Upon death of V.P. Elbridge Gerry Madison
3 John Gaillard President pro tempore of the Senate South Carolina - (D-R) November 25, 1814 March 4, 1817 appointed as pro tempore Madison
4 Hugh Lawson White President pro tempore of the Senate Tennessee - (D) December 28, 1832 March 4, 1833 upon resignation of V.P. John C. Calhoun Jackson
5 Samuel Lewis Southard President pro tempore of the Senate New Jersey - (W) April 4, 1841 May 31, 1842 upon death of President William H. Harrison Tyler
6 Willie P. Mangum President pro tempore of the Senate North Carolina - (W) May 31, 1842 March 4, 1845 upon resignation of pro tempore Samuel Lewis Southard Tyler
7 Howell Cobb Speaker of the House Georgia - (D) July 9, 1850 July 11, 1850 upon death of President Zachary Taylor Fillmore
8 William Rufus de Vane King President pro tempore of the Senate Alabama - (D) July 11, 1850 December 20, 1852 appointed as pro tempore Fillmore
9 David Rice Atchison President pro tempore of the Senate Missouri - (D) December 20, 1852 March 4, 1853 appointed as pro tempore Fillmore
10 David Rice Atchison President pro tempore of the Senate Missouri - (D) April 18, 1853 December 4, 1854 upon death of V.P. William Rufus de Vane King Pierce
10 Lewis Cass President pro tempore of the Senate Michigan - (D) December 4, 1854 December 5, 1854 appointed as pro tempore Pierce
12 Jesse D. Bright President pro tempore of the Senate Indiana - (D) December 5, 1854 June 9, 1856 appointed as pro tempore Pierce
13 Charles E. Stuart President pro tempore of the Senate Michigan - (D) June 9, 1856 June 10, 1856 appointed as pro tempore Pierce
14 Jesse D. Bright President pro tempore of the Senate Indiana - (D) June 11, 1856 January 6, 1857 appointed as pro tempore Pierce
15 James M. Mason President pro tempore of the Senate Virginia - (D) January 6, 1857 March 4, 1857 appointed as pro tempore Pierce
16 Lafayette S. Foster President pro tempore of the Senate Connecticut - (R) April 15, 1865 March 2, 1867 upon death of President Abraham Lincoln A. Johnson
17 Benjamin Franklin Wade President pro tempore of the Senate Ohio - (R) March 2, 1867 March 4, 1869 appointed as pro tempore A. Johnson
18 Thomas W. Ferry President pro tempore of the Senate Michigan - (R) November 22, 1875 March 4, 1877 upon death of V.P. Henry Wilson Grant
19 Samuel J. Randall Speaker of the House Pennsylvania - (D) September 19, 1881 October 10, 1881 upon death of President James A. Garfield Arthur
20 Thomas F. Bayard President pro tempore of the Senate Delaware - (D) October 10, 1881 October 13, 1881 appointed as pro tempore Arthur
21 David Davis III President pro tempore of the Senate Illinois – (Independent) October 13, 1881 March 4, 1885 appointed as pro tempore Arthur
22 John Griffin Carlisle Speaker of the House Kentucky - (D) November 25, 1885 December 7, 1885 upon death of V.P. Thomas Hendricks Cleveland
23 John Sherman President pro tempore of the Senate Ohio - (R) December 7, 1885 January 19, 1886 appointed as pro tempore Cleveland

[edit] After the Presidential Succession Act of 1886

24 Thomas F. Bayard Secretary of State Delaware - (D) January 19, 1886 March 4, 1889 change in line of succession Cleveland
25 John Milton Hay Secretary of State District of Columbia - (R) November 21, 1899 March 4, 1901 upon death of V.P. Garret Hobart McKinley
26 John Milton Hay Secretary of State District of Columbia - (R) September 14, 1901 March 4, 1905 upon death of President William McKinley T. Roosevelt
27 Philander C. Knox Secretary of State Pennsylvania - (R) October 30, 1912 March 4, 1913 upon death of V.P. James S. Sherman Taft
28 Charles Evans Hughes Secretary of State New York - (R) August 2, 1923 March 4, 1925 upon death of President Warren G. Harding Coolidge
29 Edward Stettinius, Jr. Secretary of State Virginia - (D) April 12, 1945 June 27, 1945 upon death of President Franklin D. Roosevelt Truman
30 Henry Morgenthau, Jr. Secretary of the Treasury New York - (D) June 27, 1945 July 3, 1945 upon resignation of Secretary of State Edward Stettinius, Jr. Truman
31 James F. Byrnes Secretary of State South Carolina - (D) July 3, 1945 January 21, 1947 appointed Secretary of State Truman
32 George Marshall Secretary of State Pennsylvania - (D) January 21, 1947 July 17, 1947 appointed Secretary of State upon the resignation of James F. Byrnes Truman

[edit] After the Presidential Succession Act of 1947

33 Joseph William Martin, Jr. Speaker of the House Massachusetts - (R) July 17, 1947 January 3, 1949 upon Presidential Succession Act of 1947 Truman
34 Samuel Taliaferro Rayburn Speaker of the House Texas - (D) January 3, 1949 January 20, 1949 upon change of powers of Congress Truman
35 John William McCormack Speaker of the House Massachusetts - (D) November 22, 1963 January 20, 1965 upon death of President John F. Kennedy L. Johnson
36 Carl Albert Speaker of the House Oklahoma - (D) October 10, 1973 December 6, 1973 upon resignation of V.P. Spiro Agnew Nixon
37 Carl Albert Speaker of the House Oklahoma - (D) August 9, 1974 December 19, 1974 resignation of President Nixon Ford

[edit] References

  1. ^ IS THE PRESIDENTIAL SUCCESSION LAW CONSTITUTIONAL?, 48 Stan. L. Rev. 113 (November 1995)
  2. ^ § 503 of Pub.L. 109-177
  3. ^ Presidential Succession Act of 2007, H.R. 540, 110th Cong.
  4. ^ www.continuityofgovernment.org/pdfs/091603MillerTestimony.pdf
  5. ^ Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional, 48 Stan. L. Rev. 113 (1995)

[edit] See also

[edit] External links