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

Wikisource has original text related to this article: Presidential Succession Act 1792

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 John 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" while sailing on a demonstration in the Potomac River below Washington;^[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

Wikisource has original text related to this article: Presidential Succession Act 1886

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 United States Senate and the Speaker of the House of Representatives on the list with the members of the Presidential 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 it happens, six former Secretaries of State had gone on to be elected President in their own right and as only one Congressional leader, who was Speaker of the House of Representatives James K. Polk, had done so to that time, the change was widely accepted.

The 1886 Presidential Succession 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 Vice Presidents Garret Hobart, and James S. Sherman, died in office.

Presidential Succession Act of 1947

Wikisource has original text related to this article: Presidential Succession Act 1947 (original version)

Shortly after President Franklin D. Roosevelt's death, President Harry S. 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 Presidential Cabinet Secretaries and Officers then followed, again in the order in which their respective departments were created.^[5] In 1948, the Secretary of Defense (an office created in 1947 with the United States Department of Defense following the reorganization and removal from the Presidential Cabinet-level of the U.S. Secretary of War (renamed the Secretary of the Army) and the Navy, along with the creation of a new Department of the Air Force, also with its own Secretary). So the new U.S. Secretary of Defense replaced the longtime historic offices of the old Secretaries of War and the Navy in the line of presidential succession.

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 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 reintroduced.

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 a cabinet officer can serve as Acting President 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):

“	...and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.	”

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:

“	The Constitution on its face seems to stipulate that once a person is deemed to be acting president by the Presidential Succession Act, he or she cannot be replaced by a different person. This interpretation makes some logical sense as the provision would presumably prevent the confusion that would arise if the presidency were transferred to several different individuals in a short period of time. It would also seemingly prevent Congress from exercising influence on the executive branch by threatening to replace a cabinet member acting as president with a newly elected Speaker of the House.[16]	”

Twenty-fifth Amendment

Section 2 of the Twenty-fifth Amendment allows 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

#	Name	Office Title	Party	Years	Reason	President
1	William Harris Crawford	President pro tempore of the Senate	Democratic- Republican	April 20, 1812 – March 4, 1813	Death of Vice President George Clinton	Madison
2	Langdon Cheves	Speaker of the House	Democratic- Republican	November 23, 1814 – November 25, 1814	Death of Vice President Elbridge Gerry	Madison
3	John Gaillard	President pro tempore of the Senate	Democratic- Republican	November 25, 1814 – March 4, 1817	Elected President pro tempore	Madison
4	Hugh Lawson White	President pro tempore of the Senate	Democratic	December 28, 1832 – March 4, 1833	Resignation of Vice President John C. Calhoun	Jackson
5	Samuel L. Southard	President pro tempore of the Senate	Whig	April 4, 1841 – May 31, 1842	Death of President William Henry Harrison	Tyler
6	Willie P. Mangum	President pro tempore of the Senate	Whig	May 31, 1842 – March 4, 1845	Elected President pro tempore upon the resignation of President pro tempore Samuel L. Southard	Tyler
7	Vacant			July 9, 1850 – July 11, 1850	Death of President Zachary Taylor; vacancy in office of President pro tempore of the Senate; Speaker of the House Howell Cobb did not qualify due to not yet being 35 years old.	Fillmore
8	William R. King	President pro tempore of the Senate	Democratic	July 11, 1850 – December 20, 1852	Elected President pro tempore	Fillmore
9	David Rice Atchison	President pro tempore of the Senate	Democratic	December 20, 1852 – March 4, 1853	Elected President pro tempore	Fillmore
10	David Rice Atchison	President pro tempore of the Senate	Democratic	April 18, 1853 – December 4, 1854	Death of Vice President William R. King	Pierce
10	Lewis Cass	President pro tempore of the Senate	Democratic	December 4, 1854 – December 5, 1854	Elected President pro tempore	Pierce
12	Jesse D. Bright	President pro tempore of the Senate	Democratic	December 5, 1854 – June 9, 1856	Elected President pro tempore	Pierce
13	Charles E. Stuart	President pro tempore of the Senate	Democratic	June 9, 1856 – June 10, 1856	Elected President pro tempore	Pierce
14	Jesse D. Bright	President pro tempore of the Senate	Democratic	June 11, 1856 – January 6, 1857	Elected President pro tempore	Pierce
15	James M. Mason	President pro tempore of the Senate	Democratic	January 6, 1857 – March 4, 1857	Elected President pro tempore	Pierce
16	Lafayette S. Foster	President pro tempore of the Senate	Republican	April 15, 1865 – March 2, 1867	Death of President Abraham Lincoln	A. Johnson
17	Benjamin F. Wade	President pro tempore of the Senate	Republican	March 2, 1867 – March 4, 1869	Elected President pro tempore	A. Johnson
18	Thomas W. Ferry	President pro tempore of the Senate	Republican	November 22, 1875 – March 4, 1877	Death of Vice President Henry Wilson	Grant
19	Vacant			September 19, 1881 – October 10, 1881	Death of President James A. Garfield; vacancy in offices of President pro tempore of the Senate and Speaker of the House	Arthur
20	Thomas F. Bayard	President pro tempore of the Senate	Democratic	October 10, 1881 – October 13, 1881	Elected President pro tempore	Arthur
21	David Davis III	President pro tempore of the Senate	Independent	October 13, 1881 – March 4, 1885	Elected President pro tempore	Arthur
22	Vacant			November 25, 1885 – December 7, 1885	Death of Vice President Thomas A. Hendricks; vacancy in offices of President pro tempore of the Senate and Speaker of the House	Cleveland
23	John Sherman	President pro tempore of the Senate	Republican	December 7, 1885 – January 19, 1886	Elected President pro tempore	Cleveland

After the Presidential Succession Act of 1886

#	Name	Office Title	Party	Years	Reason	President
24	Thomas F. Bayard	Secretary of State	Democratic	January 19, 1886 – March 4, 1889	Change in line of succession	Cleveland
25	John Hay	Secretary of State	Republican	November 21, 1899 – March 4, 1901	Death of Vice President Garret Hobart	McKinley
26	John Hay	Secretary of State	Republican	September 14, 1901 – March 4, 1905	Death of President William McKinley	T. Roosevelt
27	Philander C. Knox	Secretary of State	Republican	October 30, 1912 – March 4, 1913	Death of Vice President James S. Sherman	Taft
28	Charles Evans Hughes	Secretary of State	Republican	August 2, 1923 – March 4, 1925	Death of President Warren G. Harding	Coolidge
29	Edward Stettinius, Jr.	Secretary of State	Democratic	April 12, 1945 – June 27, 1945	Death of President Franklin D. Roosevelt	Truman
30	Henry Morgenthau, Jr.	Secretary of the Treasury	Democratic	June 27, 1945 – July 3, 1945	Resignation of Secretary of State Edward Stettinius, Jr.	Truman
31	James F. Byrnes	Secretary of State	Democratic	July 3, 1945 – January 21, 1947	Appointed Secretary of State	Truman
32	George Marshall	Secretary of State	Democratic	January 21, 1947 – July 17, 1947	Appointed Secretary of State upon the resignation of James F. Byrnes	Truman

After the Presidential Succession Act of 1947

#	Name	Office Title	Party	Years	Reason	President
33	Joseph William Martin, Jr.	Speaker of the House	Republican	July 17, 1947 – January 3, 1949	Change in line of succession	Truman
34	Sam Rayburn	Speaker of the House	Democratic	January 3, 1949 – January 20, 1949	Elected Speaker of the House	Truman
35	John William McCormack	Speaker of the House	Democratic	November 22, 1963 – January 20, 1965	Death of President John F. Kennedy	L. Johnson
36	Carl Albert	Speaker of the House	Democratic	October 10, 1973 – December 6, 1973	Resignation of Vice President Spiro Agnew	Nixon
37	Carl Albert	Speaker of the House	Democratic	August 9, 1974 – December 19, 1974	Resignation of President Richard Nixon	Ford

Invocations of the Twenty-fifth Amendment

#	Name	Office Title	Party	Years	Reason	President	Acting President
38	Thomas P. O'Neill Jr.	Speaker of the House	Democratic	July 13, 1985	Section 3 of the Twenty-fifth Amendment	Ronald Reagan	George H. W. Bush
39	Dennis Hastert	Speaker of the House	Republican	June 29, 2002	Section 3 of the Twenty-fifth Amendment	George W. Bush	Dick Cheney
40	Nancy Pelosi	Speaker of the House	Democratic	July 21, 2007	Section 3 of the Twenty-fifth Amendment	George W. Bush	Dick Cheney

See also

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

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