Presidential Succession Act
The Presidential Succession Act establishes who shall exercise 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 Act was adopted in 1947 and is codified at 3 U.S.C. § 19.[1]
Constitutional authority for Congress to enact such a law is twofold: Article II, Section 1, Clause 6 and Section 3 of the Twentieth Amendment.
Current text
3 U.S.C. § 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.
Previous acts
Presidential Succession Act of 1792
The Presidential Succession Act of 1792 consisted of sections 9 and 10 of a larger federal statute.[2]
Provisions
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Section 9 declared that, in the event of the removal, resignation, death, or inability 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 both the President and Vice President were removed, resigned, or died, 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).[2]
Potential implementation
While the 1792 Act was never implemented, there were ten instances when the Vice Presidency was vacant. Had the President died, resigned, been removed from office, or been disabled, the President pro tempore of the Senate would have become the Acting President of the United States:
- Vice Presidents John Tyler, Millard Fillmore, Andrew Johnson and Chester A. 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 came very close to being implemented on three occasions:
- In 1844, President John Tyler narrowly missed being killed by the explosion of a bow gun on board USS Princeton while sailing on a demonstration in the Potomac River below Washington;[3] had this occurred, President pro tempore Willie Person Mangum would have become Acting President.
- In 1865, President Abraham Lincoln was assassinated by John Wilkes Booth. Two of Booth's accomplices also intended to assassinate Vice President Andrew Johnson and Secretary of State William H. Seward. Seward's would-be assassin, Lewis Powell, attacked but failed to kill him, whereas George Atzerodt, who planned to murder Johnson, never acted. If Atzerodt had assassinated Johnson, President pro tempore Lafayette S. Foster 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.[4]
Presidential Succession Act of 1886
Provisions
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In 1886, following the death of Vice President Thomas A. Hendricks in the previous year, a new Presidential Succession Act was adopted,[5] 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. Six former Secretaries of State went on to be elected President; only one Congressional leader, Speaker of the House of Representatives James K. Polk, had done so to that time. The change to the order of succession was widely accepted.
The 1886 Act did not require a special presidential election to be held.
Potential implementation
Like the 1792 Act, the 1886 Act was never implemented during its 61 years, but there were five instances where the Vice Presidency was vacant. Had the President died, resigned, been removed from office, or been disabled, 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. Vice Presidents Garret Hobart and James S. Sherman died in office.
Presidential Succession Act of 1947
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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 1947 Act 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.[1] In 1947, the Secretary of Defense was created, along with the United States Department of Defense, following the reorganization and removal from the cabinet of the Secretary of War (renamed the Secretary of the Army) and Secretary of the Navy, along with the creation of a new Department of the Air Force, also with its own Secretary. In 1948, the new Secretary of Defense replaced the longtime historic offices of the old Secretaries of War and the Navy in the line of presidential succession.
Potential implementations
Like its predecessors, the 1947 Act has not been implemented. There have been seven instances where it would have been if the President or Acting President had died, resigned, been removed from office, or been disabled:
- During the first two years of this Act being in effect there was no Vice President. Harry S. Truman had become President upon Franklin D. Roosevelt's death in 1945.
- Following the assassination of John F. Kennedy in 1963, Lyndon B. Johnson became President. There was no Vice President, until January 20, 1965, when Hubert H. Humphrey became Vice President.
- There was no Vice President during the two months in 1973 between Spiro Agnew's resignation and Gerald Ford's confirmation as Vice President.
- In 1974, there was no Vice President during the four-month period between Ford's succession to the Presidency and the confirmation of Vice President Nelson Rockefeller.
- In 1985, President Ronald Reagan invoked Section 3 of the Twenty-fifth Amendment, making Vice President George H. W. Bush Acting President for approximately eight hours.
- In 2002 and 2007, President George W. Bush invoked Section 3 of the Twenty-fifth Amendment, making Vice President Dick Cheney Acting President for a little over two hours each time.
In the 1973 and 1974 cases, implementation of the 1947 Act was put off by Section 2 of the Twenty-fifth Amendment providing the ability to fill the two Vice Presidential vacancies.
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 Vice-President, Speaker of the House, President pro tempore of the Senate, and the Cabinet, one member of the Cabinet does not attend, being the "designated successor". This ensures there is always someone remaining to exercise the powers of the presidency, even if all the other officers are killed at the event.[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 successor" and he was taken to a secure location instead of attending the ceremony.[7]
Revisions
The 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 Act was amended to add the Secretary of Homeland Security after the Secretary of Veterans Affairs.[9]
Constitutionality
The constitutionality of the Act is disputed. Yale Law School Professor Akhil Reed Amar says the current 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" may be designated as a Presidential successor. Constitutional scholars from James Madison to the present day have argued that the term "Officer" refers to an "Officer of the United States," a term of art that excludes members of Congress.
In testimony before the Senate Judiciary Committee on September 16, 2003, Miller Baker said:
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]
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"[14] 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.[15] | ” |
Political question
Even if a court heard a case regarding whether the Act 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.[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. Section 2 has been invoked twice:
- 1973 – Gerald Ford became Vice President following Spiro Agnew resigning
- 1974 – Nelson Rockefeller became Vice President following President Richard Nixon's resignation and Ford becoming President.
In addition, Section 3 of the Twenty-fifth Amendment provides that, whenever the President of the United States transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, the powers and duties of the presidency of the United States shall be discharged by the Vice President as Acting President. During such time, the Vice President would not be able to exercise his duties as President of the Senate, which would make the President pro tempore of the Senate the body's presiding officer. Section 3 has been invoked three times:
- July 13, 1985 – President Ronald Reagan underwent surgery to remove cancerous polyps from his colon. Prior to undergoing surgery, he transmitted a letter to Speaker of the House of Representatives Tip O'Neill and President pro tempore of the Senate Strom Thurmond declaring his incapacity. Vice President George H. W. Bush was Acting President from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a second letter to resume the powers and duties of the office.
- June 29, 2002 – President George W. Bush declared himself temporarily unable to discharge the powers and duties of the office prior to undergoing a colonoscopy, which was done under sedation. He invoked Section 3 of the Twenty-fifth Amendment in letters given to White House Counsel Alberto Gonzales, who transmitted them by fax to Speaker of the House of Representatives Dennis Hastert and President pro tempore of the Senate Robert Byrd. Gonzales called Hastert's and Byrd's offices to confirm receipt of the letters, and then contacted Vice President Dick Cheney to advise him of the transfer. Cheney was Acting President from 7:09 a.m. to 9:24 a.m., whereupon Bush transmitted a second letter to resume the powers and duties of the office.
- July 21, 2007 – Under the same circumstances as the 2002 invocation, President George W. Bush transmitted a letter to President pro tempore of the Senate Robert Byrd and Speaker of the House of Representatives Nancy Pelosi declaring himself temporarily unable to discharge the powers and duties of the office prior to undergoing a colonoscopy, which was done under sedation. Vice President Cheney was Acting President from 7:16 a.m. to 9:21 a.m. that day.
Next in line
The following people have been next in line for the powers and duties of the Presidency (i.e., to become Acting President, in the event of the death, resignation, removal, or disability of the President) when there was either no Vice President or the Vice President was Acting President:
Under the Presidential Succession Act of 1792
| # | Name | Office Title | Party | Dates | 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 |
| Vacant/Howell Cobb | 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 was not yet 35 years old and so might not have been eligible, depending on whether the qualifications for the presidency apply to becoming Acting President.[17] | Fillmore | |||
| 7 | William R. King | President pro tempore of the Senate | Democratic | July 11, 1850 – December 20, 1852 |
Elected President pro tempore | Fillmore |
| 8 | David Rice Atchison | President pro tempore of the Senate | Democratic | December 20, 1852 – March 4, 1853 |
Elected President pro tempore | Fillmore |
| 9 | 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 |
| 11 | Jesse D. Bright | President pro tempore of the Senate | Democratic | December 5, 1854 – June 9, 1856 |
Elected President pro tempore | Pierce |
| 12 | Charles E. Stuart | President pro tempore of the Senate | Democratic | June 9, 1856 – June 10, 1856 |
Elected President pro tempore | Pierce |
| 13 | Jesse D. Bright | President pro tempore of the Senate | Democratic | June 11, 1856 – January 6, 1857 |
Elected President pro tempore | Pierce |
| 14 | James M. Mason | President pro tempore of the Senate | Democratic | January 6, 1857 – March 4, 1857 |
Elected President pro tempore | Pierce |
| 15 | Lafayette S. Foster | President pro tempore of the Senate | Republican | April 15, 1865 – March 2, 1867 |
Death of President Abraham Lincoln | A. Johnson |
| 16 | Benjamin F. Wade | President pro tempore of the Senate | Republican | March 2, 1867 – March 4, 1869 |
Elected President pro tempore | A. Johnson |
| 17 | Thomas W. Ferry | President pro tempore of the Senate | Republican | November 22, 1875 – March 4, 1877 |
Death of Vice President Henry Wilson | Grant |
| 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 | |||
| 18 | Thomas F. Bayard | President pro tempore of the Senate | Democratic | October 10, 1881 – October 13, 1881 |
Elected President pro tempore | Arthur |
| 19 | David Davis III | President pro tempore of the Senate | Independent | October 13, 1881 – March 3, 1883 |
Elected President pro tempore | Arthur |
| 20 | George F. Edmunds | President pro tempore of the Senate | Republican | March 3, 1883 – March 3, 1885 |
Elected President pro tempore | Arthur |
| 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 | |||
| 21 | John Sherman | President pro tempore of the Senate | Republican | December 7, 1885 – January 19, 1886 |
Elected President pro tempore | Cleveland |
Under the Presidential Succession Act of 1886
Under the Presidential Succession Act of 1947
| # | Name | Office Title | Party | Dates | Reason | President |
|---|---|---|---|---|---|---|
| 31 | Joseph William Martin, Jr. | Speaker of the House | Republican | July 17, 1947 – January 3, 1949 |
Change in line of succession | Truman |
| 32 | Sam Rayburn | Speaker of the House | Democratic | January 3, 1949 – January 20, 1949 |
Elected Speaker of the House | Truman |
| 33 | John William McCormack | Speaker of the House | Democratic | November 22, 1963 – January 20, 1965 |
Death of President John F. Kennedy | L. Johnson |
Invocations of the Twenty-fifth Amendment
| # | Name | Office Title | Party | Dates | Reason | President | Acting President |
|---|---|---|---|---|---|---|---|
| 34 | Carl Albert | Speaker of the House | Democratic | October 10, 1973 – December 6, 1973 |
Resignation of Vice President Spiro Agnew; Section 2 of the Twenty-fifth Amendment | Nixon | N/A |
| 35 | Carl Albert | Speaker of the House | Democratic | August 9, 1974 – December 19, 1974 |
Resignation of President Richard Nixon; Sections 1 and 2 of the Twenty-fifth Amendment | Ford | N/A |
| 36 | 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 |
| 37 | Dennis Hastert | Speaker of the House | Republican | June 29, 2002 | Section 3 of the Twenty-fifth Amendment | George W. Bush | Dick Cheney |
| 38 | Nancy Pelosi | Speaker of the House | Democratic | July 21, 2007 | Section 3 of the Twenty-fifth Amendment | George W. Bush | Dick Cheney |
See also
References
- 1 2 Pub.L. 80–199, S. 564, 61 Stat. 380, enacted July 18, 1947
- 1 2 An Act relative to the Election of a President and Vice President of the United States, and declaring the Officer who shall act as President in case of Vacancies in the offices both of President and Vice President, 1 Stat. 239, § 9–10 (March 1, 1792)
- ↑ The American Heritage Book of the presidents and Famous Americans, Vol. 4 (American Heritage Publishing Co., 1967), pp.298–299.
- ↑ Akhil Reed, Amar; Vikram David Amar (November 1995). "Is the Presidential Succession Law Constitutional?". Stanford Law Review. 48 (1): 113–139. JSTOR 1229151. doi:10.2307/1229151.
- ↑ 24 Stat. 1, ch. 4 (1886)
- ↑ "Gates is designated successor on Inauguration Day". Bloomberg News. January 20, 2009. Retrieved January 23, 2009.
- ↑ "Defense Secretary Robert Gates to be Obama's 'Designated Successor,'" Los Angeles Times, January 19, 2009
- ↑ S. 442, February 17, 2005
- ↑ § 503 of Pub.L. 109–177
- ↑ Ornstein, Norman J. (February 9, 2004). "It's Armageddon". American Enterprise Institute.
- ↑ Pike, John. "Ensuring the Continuity of the United States Government: The Presidency".
- ↑ 48 Stan. L. Rev. 113 (1995)
- ↑ "Article I - U.S. Constitution - FindLaw".
- ↑ "Presidential Succession Act".
- ↑ Second Report of the Continuity of Government Commission, 2009
- ↑ 48 Stan. L. Rev. 155 (1995)
- ↑ Feerick, John (2014). "1". The Twenty-Fifth Amendment (Third ed.). Fordham University Press. pp. 44, fn. ISBN 978-0-8232-5201-5.
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
- Testimony of M. Miller Baker