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A Presidential Succession Act (currently 3 U.S.C. § 19) 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."
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.
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The Presidential Succession Act of 1792 declared that, in the event of the removal, resignation, or death of both the President and Vice President, the President pro tempore of the Senate was next in line of succession after the Vice President, followed by the Speaker of the House of Representatives.[1]
While the 1792 act was never implemented, there were a number of instances where, had the President died, resigned or been removed from office, the President pro tempore of the Senate would have become the Acting President. These instances are:
In each case, the Vice Presidency was left vacant, leaving the President pro tempore of the Senate next in line.
The closest the act came to being implemented occurred in 1868, when President Andrew Johnson came one vote short in the Senate of being removed from office after being impeached by the House of Representatives. Had he been removed from office, Benjamin Wade, President pro tempore of the Senate, would have been Acting President until a special Presidential election had been held.[2]
In 1886, following the death of Vice President Thomas A. Hendricks in the previous year, a new Presidential Succession Act was adopted,[3] 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.
As with the 1792 act, the act of 1886 was never implemented during its 61 years, but there were instances where, had the President died, resigned or been removed from office, the Secretary of State would have become Acting President. These instances are:
The current legislation is the Presidential Succession Act 1947.
§ 19. Vacancy in offices of both President and Vice President; officers eligible to act.
Following World War II and the death of President Roosevelt, President Truman lobbied for a revision of the law, and ultimately the current act was passed.
The new law restored the Congressional officers to places directly after the Vice President, but switched their order from the 1792 Act, placing the 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. This placed the Secretary of Defense in the place that had been held by the Secretary of War.
As with its predecessors, this act has not been implemented. There have been instances where it would have been if the President had died, resigned or been removed from office. For example, 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; also for the two months in 1973 between Spiro Agnew's resignation as Vice President and Gerald Ford's confirmation as Vice President; and the following year, 1974, in 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 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 his 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.[4] 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.[5]
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 from 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,[6] 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.[7]
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."[8] There are two main areas of concern.
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 the legislative branch.
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.[9]
In Is the Presidential Succession Law Constitutional,[10] 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 can not 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.[11]
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.[12]
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"[13] 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.[14] | ” |
Section 2 of the Twenty-fifth Amendment permits the President to appoint, with confirmation of the Congress, a Vice President when the office of Vice President is vacant.
The following people have been next in line for the powers and duties of the Presidency of the United States (i.e., to become Acting President, in the event of the death, resignation, or removal of the President and the Vice President of the United States):
| 33 | Joseph William Martin, Jr. | Speaker of the House | Massachusetts - (R) | July 17, 1947 | January 3, 1949 | change in line of succession | Truman |
| 34 | Sam Rayburn | Speaker of the House | Texas - (D) | January 3, 1949 | January 20, 1949 | upon becoming the Speaker of the House | Truman |
| 35 | John William McCormack | Speaker of the House | Massachusetts - (D) | November 22, 1963 | January 20, 1965 | upon death of President John F. Kennedy | L. Johnson |
| 36 | Carl Albert | Speaker of the House | Oklahoma - (D) | October 10, 1973 | December 6, 1973 | upon resignation of V.P. Spiro Agnew | Nixon |
| 37 | Carl Albert | Speaker of the House | Oklahoma - (D) | August 9, 1974 | December 19, 1974 | resignation of President Nixon | Ford |
   | Testimony of M. Miller Baker - www.senate.gov - This page cannot be found. |
| | Fools, Drunkards, & Presidential Succession - The Federalist Society » Page not found |
| | H.R. 540 - Search Results - THOMAS (Library of Congress) |
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