United States presidential line of succession
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The 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, as specified by the Presidential Succession Act of 1947 (3 U.S.C. § 19).
Notes
- † Non-natural-born citizens are ineligible
- It has been a subject of controversy whether cabinet officers who are not natural-born citizens, such as Carlos Gutierrez (born in Cuba) or Elaine Chao (born in Taiwan), are constitutionally ineligible to be acting President, because Article Two establishes only eligibility requirements for the office of President. The same question exists for officers in the line of succession who are not at least 35 years old or have not resided in the United States for 14 years. To avoid a needless constitutional dispute at what would likely be a time of great crisis, the statute (3 U.S.C. § 19(e)) specifies that even the acting President must meet the constitutional requirements for the office of President. However, questions about the natural-born citizen requirement, especially the argument that it was superseded by the citizenship provisions of the 14th Amendment, would still keep this controversy alive; nonetheless, it is commonly believed that Gutierrez and Chao are ineligible.
- †† Inclusion of Secretary of Homeland Security
- On March 9, 2006, President Bush signed HR 3199 as Pub. L. 109–177 (text) (PDF), which renewed the Patriot Act and amended the Presidential Succession Act to include the Secretary of Homeland Security in the line of succession after the Secretary of Veterans Affairs (§ 503). In the 109th Congress, legislation was introduced to place the Secretary of Homeland Security into the line of succession after the Attorney General but that bill expired at the end of the 109th Congress and has not been re-introduced.
- 'Acting' officers are ineligible
- To be in the line of succession, an officer must have been appointed, and confirmed by the United States Senate, prior to the death, resignation, removal from office, inability, or otherwise failure to qualify of the President pro tempore. Therefore, 'acting' officers who have not been confirmed into the position cannot be in the line of succession.
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 makes the Vice President first in the line of succession and directs 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 or her 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 acts as president until a president is chosen or the President-elect qualifies. Finally, Section 3 directs 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 25th 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.
"Acting President" and "President"
Article II, Section 1 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 argue 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 2, 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. (emphasis added)
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. But, of course, 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.
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. He even returned mail sent to the “Acting President of the United States”.
This precedent was followed thereafter, and was clarified 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 go against the separation of powers. The compromise that was worked out established 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. 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, leaving no one at all in the line of succession.
President Arthur, when he left on trips, would leave an envelope addressed to "The President", assuming, if worse came to worst, someone would pick it up and open it. When Congress convened in December, 1885, President Cleveland asked for a revision of the 1792 act.
This 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, shuffling the order of the line of succession seemed reasonable.
The Presidential Succession Act of 1947, signed into law by President Harry 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.
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, its Secretary was not placed last in accordance with this tradition. 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
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 Polk's presidency ended on a Sunday. President-elect Zachary Taylor declined to be sworn in on a Sunday, citing religious beliefs. Some believe that Senate President pro-tempore David Rice Atchison was President for the day. However, most historians and constitutional scholars state that the Presidency is not dependent on the swearing-in.
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 had he been removed from office, President pro tempore Benjamin Wade would have become acting President. This posed a potential conflict of interest, as Wade's own vote on impeachment could have helped to determine whether he would succeed to the presidency.
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 U.S. Code — would have been able to "act as President until the expiration of 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. Presumably, Acting President Albert would have appointed a Republican Vice President because, upon the confirmation of that individual, Albert's term as Acting President would have immediately ended and that person would become President. 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. As for now, I'm in control here, in the White House, pending the return of the vice president and in close touch with him. If something came up, I would check with him, of course.
A bitter dispute ensued over the meaning of Haig's remarks. Some people claimed Haig was referring to the line of succession (which would have been an error), while Haig and his supporters say he only meant that he was running things temporarily until radio contact could be established with Air Force Two, the plane of the Vice President.
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.[1] 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.[2] 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 President pro tempore to become President, they must resign their position, at which point they are no longer in the line of succession. This forms a constitutional paradox to some.
In 2003, the Continuity of Government Commission, a private nonpartisan think tank, suggested that the current law has "at least seven significant issues … that warrant attention," including:[3]
- 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, perhaps even likely, 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 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 Speaker and the President Pro Tempore are not necessarily of the same party as the President.
- 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 him- or herself 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).
Theories regarding exhaustion of the list
Though the statutory list of Presidential succession has only 17 officials, there are conspiracy theories about the existence of a much longer, secret list that lists hundreds of politicians, statesmen and officials, including all governors and senators. Though it is possible a longer list could have been devised as a part of the Continuity of Operations Plan in the anticipation of nuclear war, such a list would be unlikely to have any legal or constitutional standing. To avoid such an unprecedented situation, the government specifically makes sure that there are no occurrences in which the President and all of the potential successors are present in the same place. For gatherings like the State of the Union Address, one eligible cabinet member is randomly selected and is hidden in an undisclosed location. Thus, if for whatever reason catastrophe struck the Capitol, there would still be a person—the designated survivor—to assume the presidency.
There are no explicit provisions for what would happen if everyone on the list were dead, unable to serve, or otherwise ineligible to assume the Presidency.
Deputy secretaries would not be eligible, as the line of succession only applies to full Cabinet members. In the event of the death of their superior, deputy secretaries only assume the responsibilities as “acting secretary”—positions that are not counted in the line of presidential succession. It appears, however, that if Congress were still able to convene then the House could elect a new Speaker or the Senate could elect a new President pro tempore who would then immediately act as President.
This scenario often occurs in state governments, which lack extensive succession lists to determine who becomes governor in the case of multiple resignations or deaths. However, at the federal level this procedure has the problem that it may be extremely time consuming in case of national emergency, and may not be possible if Congress is unable to meet, as could be the case after a massive attack on the country. This possibility has caused some discussion on constitutional or legal remedies, although no formal action has been taken.
Since the September 11, 2001 attacks, one Member of the House of Representatives and one Senator from each political party have served as designated survivors concurrently with the Cabinet member so designated; so they can succeed to the office of Speaker of the House of Representatives or President pro tempore of the Senate (the offices that are respectively first and second in the line of succession to the presidency after the Vice President)[citation needed].
See also
External links
- ^ "Is the Presidential Succession Law Constitutional?", Akhil Reed Amar, Stanford Law Review, November 1995.
- ^ uchicago.edu
- ^ First Report p. 15, continuityofgovernment.org
- Ask Gleaves: Presidential Succession
- 3 U.S.C. § 19 - "Vacancy in offices of both President and Vice President; officers eligible to act"
- Presidential Succession Act of 1792, 1 Stat. 239
- “Presidential Line of Succession Examined”, September 20 2003
- “WI Presidential Succession Act of 1947 held unconstitutional”, David Tenner, Usenet group: soc.history.what-if, January 14 2003.
- Presidential line of succession at various times in history
- Fools, Drunkards, & Presidential Succession
- Continuity of Government Commission
- Testimony of M. Miller Baker
- Amendment25.com
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