The
United States presidential line of succession defines who may become or act as
President of the United States upon the
incapacity, death, resignation, or removal from office (by
impeachment and subsequent
conviction) of a sitting president or a
president-elect.
Current order
This is a list of the current presidential
line of succession,
[1] as specified by the
United States Constitution and the
Presidential Succession Act of 1947[2] as subsequently amended to include newly created cabinet offices.
Eligibility
Eligibility requirements
No person is eligible to be President unless that person is a "
natural-born citizen",
is at least thirty-five years old, and has been a resident within the
United States for at least fourteen years. These eligibility
requirements are specified both in the U.S. Constitution, Article II,
Section 1, Clause 5, and in the Presidential Succession Act (
3 U.S.C. § 19(e)).
Acting officers
Acting officers may be eligible. In 2009, the
Continuity of Government Commission, a private
non-partisan think tank, reported,
The language in the current Presidential Succession Act is less clear
than that of the 1886 Act with respect to Senate confirmation. The 1886
Act refers to "such officers as shall have been appointed by the advice
and consent of the Senate to the office therein named..." The current
act merely refers to "officers appointed, by and with the advice and
consent of the Senate." Read literally, this means that the current act
allows for acting secretaries to be in the line of succession as long as
they are confirmed by the Senate for a post (even for example, the
second or third in command within a department). It is not uncommon for a
second in command to become acting secretary when the secretary leaves
office. Though there is some dispute over this provision, the language
clearly permits acting secretaries to be placed in the line of
succession. (We have spoken to acting secretaries who told us they had
been placed in the line of succession.)[3]
Motivation for changes to the succession in 1945
Two months after succeeding
Franklin D. Roosevelt, President
Harry S. Truman proposed that the
Speaker of the House and the
President pro tempore of the Senate be granted priority in the line of succession over the
Cabinet so as to ensure the President would not be able to appoint his successor to the Presidency.
[4]
The
Secretary of State
and the other Cabinet officials are appointed by the President, while
the Speaker of the House and the President pro tempore of the Senate are
elected officials. The Speaker is chosen by the
U.S. House of Representatives,
and every Speaker has been a member of that body for the duration of
their term as Speaker; the President pro tempore is chosen by the
U.S. Senate and by custom the Senator of the majority party with the longest record of continuous service fills this position. The
Congress
approved this change and inserted the Speaker and the President pro
tempore in line, ahead of the members of the Cabinet in the order in
which their positions were established.
In his speech supporting the changes, Truman noted that the House is
more likely to be in political agreement with the President and Vice
President than the Senate. The succession of a Republican to a
Democratic Presidency would further complicate an already unstable
political situation. However, when the changes to the succession were
signed into law, they placed Republican House Speaker
Joseph W. Martin first in the line of succession after the Vice President.
[5]
Some of Truman's critics said that his ordering of the Speaker before
the President pro tempore was motivated by his dislike of the
then-current holder of the latter rank, Senator
Kenneth McKellar.
[6] Further motivation may have been provided by Truman's preference for House Speaker
Sam Rayburn to be next in the line of succession, rather than Secretary of State
Edward R. Stettinius, Jr.[5]
Constitutional foundation
The line of succession is mentioned in three places in the Constitution: in
Article II, Section 1, in
Section 3 of the 20th Amendment, and in the
25th Amendment.
- Article II, Section 1, Clause 6 makes the Vice President first in the line of succession and allows the Congress
to provide by law for cases in which neither the President nor Vice
President can serve. The current such law governing succession is the Presidential Succession Act of 1947 (3 U.S.C. § 19).
- Section 3 of the 20th Amendment provides that if the President-elect dies before his term begins, the Vice President-elect becomes President on Inauguration Day
and serves for the full term to which the President-elect was elected.
The section also provides that if, on Inauguration Day, a president has
not been chosen or the President-elect does not qualify for the
presidency, the Vice President-elect acts as president until a president
is chosen or the President-elect qualifies. Finally, Section 3 allows
the Congress to provide by law for cases in which neither a
President-elect nor a Vice President-elect is eligible or available to
serve.
- The 25th Amendment,
ratified in 1967, clarified Article II, Section 1: that the Vice
President is the direct successor of the President. He or she becomes
President if the President dies, resigns or is removed from office. The
amendment also provides for the situation where the President is
temporarily disabled, such as if the President has a surgical procedure
or becomes mentally unstable. It also required vice presidential
vacancies to be filled by the President and confirmed by Congress.
Previously, when a vice president had succeeded to the presidency or
otherwise left the office empty (through death, resignation, or removal
from office), the vice presidency remained vacant until the next
presidential election.
Acting President and President
Article II, Section 1 of the United States Constitution provides that:
- In case of the removal of the President from office, or of his
death, resignation, or inability to discharge the powers and duties of
the said office, the same shall devolve on the Vice President ... until
the disability be removed, or a President elected.
This originally left open the question whether "the same" refers to
"the said office" or only "the powers and duties of the said office".
Some historians, including
Edward Corwin[7] and
John D. Feerick,
[7]
have argued that the framers' intention was that the Vice President
would remain Vice President while executing the powers and duties of the
presidency; however, there is also much evidence to the contrary, the
most compelling of which is
Article I, section 3, of the Constitution itself, the relevant text of which reads:
- The Vice President of the United States shall be President of the
Senate, but shall have no vote, unless they be equally divided.
- The Senate shall choose their other officers, and also a President
pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.
This text appears to answer the hypothetical question of whether the
office or merely the
powers
of the presidency devolved upon the Vice President on his succession.
Thus, the 25th Amendment merely restates and reaffirms the validity of
existing precedent, apart from adding valuable new protocols for
presidential disability. Not everyone agreed with this interpretation
when it was first put to the test, and it was left to
John Tyler,
the first presidential successor in U.S. history, to establish the
precedent that was respected in the absence of the 25th Amendment.
In 1841,
John Tyler became the first person to succeed to the presidency.
Upon the death of President
William Henry Harrison in 1841, after a brief hesitation, Vice President
John Tyler took the position that he was President, and not merely
acting President, upon taking the
presidential oath of office. However, some contemporaries—including
John Quincy Adams,
[7][8] Henry Clay
[9] and other members of Congress,
[8][9] Whig party leaders,
[9] and even Tyler's own cabinet
[8][9]—believed that he was only acting as president, and did not have the office itself.
Nonetheless, Tyler adhered to his position, even returning unopened
mail addressed to the "Acting President of the United States" sent by
his detractors.
[10] Tyler's view ultimately prevailed when the Senate voted to accept the title "President,"
[9] and this precedent was followed thereafter. The question was finally resolved by Section 1 of the
25th Amendment
which specifies that: "In case of the removal of the President from
office or of his death or resignation, the Vice President shall become
President." The Amendment does not specify whether officers other than
the Vice President can become President rather than Acting President in
the same set of circumstances. However, the Presidential Succession Act
makes clear that anyone who takes office under its provisions shall only
"act as President"—even if they "act" in that role for years. Thus only
someone serving as Vice President can ever succeed to the title of
"President of the United States."
History of succession law set by Congress
The
Presidential Succession Act of 1792 was the first succession law passed by Congress. The act was contentious because of conflict between the
Federalists and
Democratic-Republicans. The Federalists did not want the Secretary of State to appear next on the list after the Vice President because
Thomas Jefferson was then Secretary of State and had emerged as a Democratic-Republican leader. There were also concerns about including the
Chief Justice of the United States
since that would contradict the notion of separation of powers. The
compromise that was worked out established the President pro tempore of
the Senate as next in line of succession after the Vice President,
followed by the Speaker of the House of Representatives. In either case,
these officers were to "act as President of the United States until the
disability be removed or a president be elected." The Act called for a
special election to be held in November of the year in which dual
vacancies occurred (unless the vacancies occurred after the first
Wednesday in October, in which case the election would occur the
following year; or unless the vacancies occurred within the last year of
the presidential term, in which case the next election would take place
as regularly scheduled). The people elected President and Vice
President in such a special election would have served a full four-year
term beginning on March 4 of the next year, but no such election ever
took place.
In 1881, after the death of
President Garfield, and in 1885, after the death of Vice President
Hendricks,
there had been no President pro tempore in office, and as the new House
of Representatives had yet to convene, no Speaker either,
[11] leaving no one at all in the line of succession after the vice president. When Congress convened in December 1885,
President Cleveland
asked for a revision of the 1792 act, which was passed in 1886.
Congress replaced the President pro tempore and Speaker with officers of
the President's
Cabinet with the Secretary of State first in line. In the first 100 years of the United States, six former
Secretaries of State
had gone on to be elected President, while only two congressional
leaders had advanced to that office. As a result, changing the order of
the line of succession seemed reasonable.
[citation needed]
The
Presidential Succession Act of 1947, signed into law by President
Harry S. Truman,
added the Speaker of the House and President pro tempore back in the
line, but switched the two from the 1792 order. It remains the sequence
used today. Since the reorganization of the military in 1947 had merged
the War Department (which governed the Army) with the Department of the
Navy into the
Department of Defense, the Secretary of Defense took the place in the order of succession previously held by the Secretary of War. The office of
Secretary of the Navy,
which had existed as a Cabinet-level position since 1798, had become
subordinate to the Secretary of Defense in the military reorganization,
and so was dropped from the line of succession in the 1947 Succession
Act.
Until 1971, the
Postmaster General, the head of the
Post Office Department, was a member of the
Cabinet,
initially the last in the presidential line of succession before new
officers were added. Once the Post Office Department was re-organized
into the
United States Postal Service,
a special agency independent of the executive branch, the Postmaster
General ceased to be a member of the Cabinet and was thus removed from
the line of succession.
The order of Cabinet members set out in the statute has always been
the same as the order in which their respective departments were
established. However, when the
United States Department of Homeland Security
was created in 2002, many in Congress wanted the Secretary to be placed
at number eight on the list – below the Attorney General, above the
Secretary of the Interior, and in the position held by the Secretary of
the Navy prior to the creation of the Secretary of Defense – because the
Secretary, already in charge of disaster relief and security, would
presumably be more prepared to take over the presidency than some of the
other Cabinet secretaries. Legislation to add the Secretary of Homeland
Security to the bottom of the list was enacted on March 9, 2006.
Successions beyond Vice President
David Rice Atchison's tombstone, Plattsburg, Missouri, including the claim "President of the United States for One Day"
While nine vice presidents have succeeded to the office upon the
death or resignation of the President, and two vice presidents have
temporarily served as acting President, no other officer has ever been
called upon to act as President.
On March 4, 1849,
James K. Polk's presidency ended on a Sunday. President-elect
Zachary Taylor declined to be sworn in on a Sunday, citing religious beliefs. Senate President pro tempore
David Rice Atchison's
tombstone states that he was President for the day. However, that claim
seems dubious as Atchison himself took no oath of office to the
presidency. It is not logical to label Atchison as a president on the
basis of Taylor's delay in taking the oath. (Several others, including
the current President, have taken the required oath minutes or hours
after their term of office as President began at noon.)
In 1865, when
Andrew Johnson assumed the presidency on the death of
Abraham Lincoln,
the office of Vice President became vacant. At that time, the Senate
President pro tempore was next in line to the presidency. In 1868
Johnson was
impeached, and if he had been removed from office, President pro tempore
Benjamin Wade
would have become acting President. This posed a conflict of interest,
as Wade's own vote on removal could have helped to determine whether he
would succeed to the presidency.
Conservative talk-show host and film critic
Michael Medved claims that prior to the
1916 election, when the First World War was raging in Europe, a plan was hatched by
President Woodrow Wilson and his aides that in the event
Charles Evans Hughes won the election in November, Wilson would appoint his successful opponent to the post of
Secretary of State. Wilson and his Vice President
Thomas R. Marshall
would then resign, and as the Secretary of State was at that time
designated next in line of succession, Hughes would become President. By
this means,
President-elect
Hughes would assume the Presidency immediately upon election instead of
having the usual four months of lame duck administration, which was
thought would be problematic at a time of international turmoil. In the
event, Wilson won re-election so the plan was never put into action.
[12]
During the
1973 vice-presidential vacancy,
House Speaker Carl Albert was first in line. As the
Watergate scandal made President Nixon's removal or resignation possible, Albert would have become
Acting President and—under Title 3, Section 19(c) of the
U.S. Code—would
have been able to "act as President until the expiration of the then
current Presidential term." Albert openly questioned whether it was
appropriate for him, a
Democrat, to assume the powers and duties of the presidency when there was a public
mandate for the presidency to be held by a
Republican. Albert announced that should he need to assume the presidential powers and duties, he would do so only as a
caretaker. However, with the nomination and confirmation of
Gerald Ford
to the vice presidency, these series of events were never tested.
Albert again became first-in-line during the first four months of Ford's
presidency, before the confirmation of Vice President
Nelson Rockefeller.
In 1981, when
President Ronald Reagan was shot, Vice President
George H. W. Bush was traveling in Texas. Secretary of State
Alexander Haig responded to a reporter's question regarding who was running the government by stating;
Constitutionally, gentlemen, you have the President, the Vice
President and the Secretary of State in that order, and should the
President decide he wants to transfer the helm to the Vice President, he
will do so. He has not done that. As of now, I am in control here, in
the White House, pending return of the Vice President and in close touch
with him. If something came up, I would check with him, of course.[13]
A bitter dispute ensued over the meaning of Haig's remarks. Most
people believed that Haig was referring to the line of succession and
erroneously claimed to have temporary presidential authority, due to his
implied reference to the Constitution. Haig and his supporters, noting
his familiarity with the line of succession from his time as
White House Chief of Staff during
Richard Nixon's resignation, said he only meant that he was the highest-ranking officer of the
Executive branch on-site, managing things temporarily until the Vice President returned to
Washington.
Constitutional concerns
Several constitutional law experts have raised questions as to the
constitutionality of the provisions that the Speaker of the House and
the President pro tempore of the Senate succeed to the presidency.
[14] James Madison, one of the authors of the Constitution, raised similar constitutional questions about the
Presidential Succession Act of 1792 in a 1792 letter to
Edmund Pendleton.
[15] Two of these issues can be summarized:
- The term "Officer" in the relevant clause of the Constitution is
most plausibly interpreted to mean an "Officer of the United States",
who must be a member of the Executive or Judicial Branch. The Speaker
and the President pro tempore are not officers in this sense.
- Under the principle of separation of powers, the Constitution
specifically disallows legislative officials from also serving in the
executive branch. For the Speaker or the Senate President pro tempore to
become Acting President, they must resign their position, at which
point they are no longer in the line of succession. This is seen by some
to form a constitutional paradox.
In 2003 the
Continuity of Government Commission suggested that the current law has "at least seven significant issues ... that warrant attention", including:
[16]
- The reality that all figures in the current line of succession work
and reside in the vicinity of Washington, D.C. In the event of a
nuclear, chemical, or biological attack, it is possible that everyone on
the list would be killed or incapacitated.
- Doubt (such as those expressed above by James Madison) that congressional leaders are eligible to act as President.
- A concern about the wisdom of including the President pro tempore in
the line of succession as the "largely honorific post traditionally
held by the longest-serving Senator of the majority party". For example,
from January 20, 2001, to June 6, 2001, the President pro tempore was
then-98-year-old Strom Thurmond of South Carolina.
- A concern that the current line of succession can force the
presidency to abruptly switch parties mid-term, as the President,
Speaker, and the President pro tempore are not necessarily of the same
party as each other.
- A concern that the succession line is ordered by the dates of
creation of the various executive departments, without regard to the
skills or capacities of the persons serving as their Secretary.
- The fact that, should a Cabinet member begin to act as President, the law allows the House to elect a new Speaker (or the Senate, a new President pro tempore), who could in effect remove the Cabinet member and assume the office themselves at any time.
- The absence of a provision where a President is disabled and the
vice presidency is vacant (for example, if an assassination attempt
simultaneously wounded the President and killed the Vice President).
See also
References
- Jump up ^ "Presidential Succession: Perspectives, Contemporary Analysis, and 110th Congress Proposed Legislation (RL34692)" (pdf). Congressional Research Service. October 3, 2008. p. 27.
- Jump up ^ 3 U.S.C. § 19
- Jump up ^ "Preserving Our Institutions: Presidential Succession," Continuity of Government Commission, June 2009, p.34
- Jump up ^ "Special Message to the Congress on the Succession to the Presidency. June 19, 1945" by President Harry S. Truman; from the American Presidency Project archives
- ^ Jump up to: a b Wildavsky, Aaron B. (2003). Horowitz, Irving, ed. The revolt against the masses and other essays on politics and public policy (Google Books) (in Rnglish). Transaction Publishers. p. 122. ISBN 978-0-7658-0960-5. Retrieved July 24, 2009.
- Jump up ^ Kipnotes.com
- ^ Jump up to: a b c Schlesinger, Arthur M., Jr. (Autumn, 1974). "On the Presidential Succession". Political Science Quarterly 3 (3): 475, 495–496. JSTOR 2148451.
- ^ Jump up to: a b c Rankin, Robert S. (Feb. 1946). "Presidential Succession in the United States". The Journal of Politics 8 (1): 44–56. doi:10.2307/2125607. JSTOR 2125607.
- ^ Jump up to: a b c d e Abbott, Philip (Dec. 2005). "Accidental Presidents: Death, Assassination, Resignation, and Democratic Succession". Presidential Studies Quarterly 35 (4): 627, 638. doi:10.1111/j.1741-5705.2005.00269.x. JSTOR 27552721.
- Jump up ^ Crapol, Edward P. (2006). John Tyler: the accidental president. UNC Press Books. p. 10. ISBN 978-0-8078-3041-3. OCLC 469686610.
- Jump up ^ Lewis, Charlton Thomas; Willsey, Joseph H. (1895). Harper's Book of Facts: a Classified History of the World; Embracing Science, Literature, and Art. New York: Harper & Brothers. p. 884. LCCN 01020386. Retrieved Apr 24, 2011.
- Jump up ^ Medved, Michael (1979). The Shadow Presidents: The Secret History of the Chief Executives and Their Top Aides. New York, U.S.A.: Times Books. p. 149. ISBN 0-8129-0816-3.
- Jump up ^ Alexander Haig, Time Magazine, April 02, 1984
- Jump up ^ "Is the Presidential Succession Law Constitutional?", Akhil Reed Amar, Stanford Law Review, November 1995.
- Jump up ^ uchicago.edu
- Jump up ^ First Report p. 4, continuityofgovernment.org Retrieved December 28, 2010 via Internet Archive to repair dead link
Further reading
External links
New President Lyndon Johnson was sworn in aboard Air Force One, following the assassination of John F. Kennedy in 1963.
Article II, Section 1 of the United States Constitution provides that:
During the 1973 vice-presidential vacancy, House Speaker Carl Albert was first in line. As the Watergate scandal made President Nixon's removal or resignation possible, Albert would have become Acting President and—under Title 3, Section 19(c) of the U.S. Code—would
have been able to "act as President until the expiration of the then
current Presidential term." Albert openly questioned whether it was
appropriate for him, a Democrat, to assume the powers and duties of the presidency when there was a public mandate for the presidency to be held by a Republican. Albert announced that should he need to assume the presidential powers and duties, he would do so only as a caretaker. However, with the nomination and confirmation of Gerald Ford
to the vice presidency, these series of events were never tested.
Albert again became first-in-line during the first four months of Ford's
presidency, before the confirmation of Vice President Nelson Rockefeller.
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