Presidential Succession Act

The Presidential Succession Act establishes the line of succession to the powers and duties of the office of President of the United States in the event that neither a President nor Vice President is able to "discharge the powers and duties of the office." The current Presidential Succession Act was adopted in 1947 and is codified at 3 U.S.C. § 19.

Congressional authority 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.

Previous Acts

Presidential Succession Act of 1792

The Presidential Succession Act of 1792 consisted of sections 9 and 10 of a larger federal statute.^[1]

Provisions

Section 9 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 was next in line of succession after the Vice President, followed by the Speaker of the House of Representatives.

If this happened, section 10 required there to be a presidential election in December of the year in which section 9 was invoked (or in December of the next year, if there was less than two months to go until December and the presidential term was not about to expire).^[1]

Potential implementation

While the 1792 act was never implemented, there were ten instances when the Vice Presidency was vacant. Had the President died, resigned or been removed from office during those times, the President pro tempore of the Senate would have become the Acting President:

• Vice Presidents John Tyler, Millard Fillmore, Andrew Johnson and Chester Arthur succeeded to the Presidency following the deaths of their predecessors. George Clinton, Elbridge Gerry, William R. King, Henry Wilson and Thomas A. Hendricks died in office, and John C. Calhoun resigned.

The act twice came very close to being implemented. In 1844, President Tyler narrowly missed being killed (along with Secretary of State Abel P. Upshur and Secretary of the Navy Thomas Walker Gilmer) by the explosion of a bow gun on board the U.S.S. Princeton;^[2] had this occurred, President pro tempore Willie Person Mangum would have become Acting President. In 1868, after President Andrew Johnson was impeached by the House of Representatives, the Senate came one vote short of removing him from office; if Johnson had been removed, President pro tempore Benjamin Wade would have become Acting President.^[3]

Presidential Succession Act of 1886

Provisions

In 1886, following the death of Vice President Thomas A. Hendricks in the previous year, a new Presidential Succession Act was adopted,^[4] replacing the President pro tempore of the Senate and the Speaker of the House on the list with the members of the Cabinet. The order of succession 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, Speaker of the House James K. Polk, had done so to that time, the change was widely accepted.

The 1886 Act did not require a special presidential election to be held.

Potential implementation

As with the 1792 act, the act of 1886 was never implemented during its 61 years, but there were five instances where the Vice Presidency was vacant. Had the President died, resigned or been removed from office, the Secretary of State would have become Acting President:

• Vice Presidents Theodore Roosevelt, Calvin Coolidge and Harry S. Truman assumed the Presidency following the deaths of their predecessors, while Garret Hobart and James Sherman died in office.

Current Act

Shortly after President Roosevelt's death, President Truman lobbied for a revision of the law and consequently the Presidential Succession Act of 1947 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 Speaker of the House 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 line of succession, directly after the Secretary of the Treasury. Thus, the Secretary of Defense was put in the line of succession in the place that had been held by the Secretary of War.^[5]

Current text

3 USC § 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)

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.

(f)

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.

Potential implementations

As with its predecessors, this act has not been implemented. There have been four instances where it would have been if the President had died, resigned or been removed from office:

• During the first two years of this act being in effect there was no Vice President, because Harry S. Truman had become President upon Franklin D. Roosevelt's death in 1945.

• Following the assassination of President John F. Kennedy in 1963, Lyndon B. Johnson became President and so there was no Vice President for fourteen months.

• There was no Vice President during the two months in 1973 between Spiro Agnew's resignation as Vice President and Gerald Ford's confirmation as Vice President.

• In 1974, during the four-month period between Gerald Ford's succession to the Presidency and the confirmation of Vice President Nelson Rockefeller.

In the 1973 and 1974 cases, implementation of the act was put off by the ability to fill the two Vice Presidential vacancies under Section 2 of the Twenty-fifth Amendment.

During the September 11, 2001 terrorist attacks, several people 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.

When the President attends an event with the Speaker of the House, the President pro tempore of the Senate, and the Cabinet, one of the members of the Cabinet does not attend. That person is the "designated successor" for that event. This is done so that, if the event is attacked and everyone else in the line of succession is killed, the "designated survivor" would become Acting President.^[6] During the inauguration of President Barack Obama on January 20, 2009, the Bush and Obama transition teams agreed to name Secretary of Defense Robert Gates as the "designated survivor" and he was taken to a secure location instead of attending the ceremony.^[7]

Revisions

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

Many in the Congress felt the Secretary of Homeland Security should have been placed 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. 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, legislation was introduced to place the Secretary of Homeland Security into the line of succession after the Attorney General,^[8] but the bill expired at the end of the 109th Congress and was not re-introduced.

The matter remained unresolved until March 9, 2006, when the Presidential Succession Act was amended to add the Secretary of Homeland Security after the Secretary of Veterans Affairs.^[9]

Constitutionality

The constitutionality of the 1947 Act has been disputed. Yale Law School Professor Akhil Reed Amar says the current Presidential Succession Act is "a disastrous statute, an accident waiting to happen."^[10] There are two main areas of concern.

Meaning of "officer"

There are concerns regarding the constitutionality of having members of Congress in the line of succession. Article II, Section 1, Clause 6 of the Constitution specifies that only an "Officer" of the United States may be designated as a Presidential successor. Constitutional scholars from James Madison to the present day have argued that the term "Officer" excludes members of Congress.

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.^[11]

In Is the Presidential Succession Law Constitutional,^[12] Akhil Reed Amar and Vikram Amar refer to Article I, Section 6, Clause 2 (a.k.a., Incompatibility Clause) as evidence that members of the Congress cannot be in the Presidential line of succession. That 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.^[13]

Even if a court heard a case regarding whether the Presidential Succession Act of 1947 is unconstitutional, a court may decide not to rule on the merits of such a case. For example, in The Political Question of Presidential Succession, Northwestern University Professor Steven G. Calabresi suggests that this Act's constitutionality may be a political question.^[14]

Bumping

The Act is also controversial because it provides that if a cabinet officer becomes Acting President, he serves only until a new Speaker of the House or a new President Pro Tempore of the Senate is chosen, who would then replace him as Acting President. This is sometimes referred to as "bumping"^[15] and appears to contradict the text of the Constitution, which says (in Article II, section 1, Clause 6):

The Continuity of Government Commission argued that as well as going against the language of the Constitution, bumping violates the doctrine of separation of powers by undermining the independence of the executive from the Congress:

Twenty-fifth Amendment

Section 2 of the Twenty-fifth Amendment permits the President to nominate a new Vice President when the office of Vice President is vacant. The nominee becomes Vice President if confirmed by each house of the Congress.

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) when there was no Vice President of the United States:

After the Presidential Succession Act of 1792

After the Presidential Succession Act of 1886

After the Presidential Succession Act of 1947

Invocations of Section 3 of the Twenty-fifth Amendment

See also

• United States presidential line of succession
• Acting Vice President of the United States

References

External links

• 'Presidential and Vice Presidential Succession: Overview and Current Legislation, Congressional Research Service Report for Congress, Order Code RL31761, September 27, 2004
• Presidential Succession: An Overview with Analysis of Legislation Proposed in the 109th Congress, Congressional Research Service Report for Congress, Order Code RL32969, June 29, 2005
• Amendment25.com
• Fools, Drunkards, & Presidential Succession
• Continuity of Government Commission
• Testimony of M. Miller Baker