TheUnited StatesPresidential Succession Act is afederal statute establishing thepresidential line of succession.[1]Article II, Section 1, Clause 6 of theUnited States Constitution authorizesCongress to enact such a statute:
Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of thePresident andVice President, declaring what Officer shall thenact as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.[2]
Congress has enacted a Presidential Succession Act on three occasions: 1792 (1 Stat. 239), 1886 (24 Stat. 1), and 1947 (61 Stat. 380). The 1947 Act was last revised in 2006.
Although none of these succession acts have ever been invoked, an invocation was a distinct possibility on several occasions. However, the future likelihood that a person in the line of succession beyond the vice president will be called upon under normal circumstances to beacting president has diminished greatly due to theTwenty-fifth Amendment's provision for filling vice presidential vacancies.[3]
Article II, Section 1, Clause 6 of the Constitution authorizes Congress to declare who should act as president if both the president and vice president died or were otherwise unavailable to serve during their terms of office. Legislation to establish such a line of succession was introduced in December 1790 in theUnited States House of Representatives, in the1st Congress. When brought up for discussion the following month, thepresident pro tempore of the United States Senate and thespeaker of the House of Representatives were proposed; theUnited States secretary of state and thechief justice of the United States were as well.[2] Lawmakers failed to reach consensus on who should be the statutory successor. Naming the secretary of state was unacceptable to mostFederalists, as they did not want the office's then-occupant,Thomas Jefferson, the leader of the growinganti-administration opposition that would become theDemocratic-Republican Party, placed so close to the presidency. Constitutional and policy objections were raised to naming the president pro tempore of the Senate or the speaker of the House, as it was assumed the individual would retain their office and seat in Congress while temporarily performing duties of the presidency;[4] similarseparation of powers concerns were also raised regarding the chief justice.[5]
The matter was raised again when the2nd Congress convened later in 1791. On November 30, the Senate approved legislation titled "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", which was sent to the House for concurrence. It contained a provision naming the president pro tempore of the Senate, or, if that office were vacant, the speaker of the House as acting president if a vacancy arose in both the presidency and vice presidency.[5] Various representatives, including a number of the Constitution's framers, criticized the arrangement as being contrary to their intent. As a result, after a contentious debate, on February 15, 1792, the House struck out the president pro tempore and speaker and inserted the secretary of state in their place. The Senate rejected the House change a few days later, and the House relented. The bill became law on March 1, 1792, with the signature of PresidentGeorge Washington.[2][5]
The Presidential Succession Act of 1792 ([6]), sections 9 and 10 of a larger act regarding the election of the president and vice president, provided that the president pro tempore of the Senate would be first in line for the presidency should the offices of the president and the vice president both be vacant. The speaker of the House was second in line.[7] Section 9 provided that the statutory successor would serve in an acting capacity until a new president could be elected.[8][A] If such a double vacancy occurred, Section 10 directed the secretary of state to notify the governor of each state of the vacancies and of the special election to fill them. This special election would take place no fewer than two months later.[10] The persons 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; no such election ever took place.[11]
While the succession provisions of the 1792 Act were never invoked, there were ten instances when the vice presidency was vacant:[12]
In each case, had the incumbent president died, resigned, been removed from office or been disabled during one of these vice presidential vacancies, the president pro tempore of the Senate would have become the acting president. Such a double vacancy nearly occurred on three occasions:
As a consequence of the sometimes lengthy vacancies in the office of vice president, the person serving as president pro tempore of the Senate garnered heightened importance, for although he did not assume the vice presidency, he was then next in line for the presidency.[17] Several who served during these vacancies were referred to informally as "Acting Vice President".[18]
The death of PresidentJames A. Garfield on September 19, 1881—after his lengthy incapacity following an assassination attempt—resulted in Vice PresidentChester A. Arthur ascending to the presidency. Upon Arthur becoming president, the offices of vice president, president pro tempore of the Senate, and speaker of the House of Representatives were vacant.
However, a new president pro tempore of the Senate was named on October 10, 1881, and a new speaker of the House of Representatives was named in December 1881.[19]
In 1884,Grover Cleveland was elected president, withThomas A. Hendricks being elected vice president. Hendricks' death in November 1885, just eight months into his term, once again left no direct successor, which forced Congress to address the inadequacies of the 1792 Succession Act.[20]
A bill to transfer the succession from congressional officers to members of the Cabinet was introduced in the Senate byGeorge Hoar in 1882. It was passed by the Senate the following year, but failed in the House. Hoar laid out several reasons why the succession statute needed to be changed: among them, that the four-year term of a president elected in a special election might be out of sync with the congressional election cycle, resulting in "confusion and trouble". He also pointed out the negative constitutional and practical implications of having the president pro tempore and the speaker in the line of succession. To buttress this argument, he pointed out that since the federal government began operations 96 years earlier in 1789, six secretaries of state had gone on to be elected president, serving in that office for 36 of those 96 years.[11][B] Reintroduced shortly after the death of Vice President Hendricks, Senator Hoar's bill was passed by the Senate after vigorous debate, in December 1885, and by the House one month later. It became law on January 19, 1886, with President Cleveland's signature.[19]
The Presidential Succession Act of 1886 ([21]) substituted the Cabinet secretaries—listed in the order in which their department was created—for the President pro tempore and Speaker in the line of succession. It provided that in case of the removal, death, resignation or inability of both the President and Vice President, such officer would "act as President until the disability of the President or Vice-President is removed or a President shall be elected."
It mandated that if Congress were not then in session nor due to meet within twenty days, the acting president was to call aspecial session of Congress, giving no less than twenty days' notice. It also stipulated that for a member of the Cabinet to act as president, he had to have been appointed by and with the advice and consent of the Senate and be eligible to the office of president, and not under impeachment. This last provision also repealed the 1792 Act's provision for a double-vacancy special election.[19][11]
While it never became necessary to invoke the 1886 Act, the vice presidency was vacant at the time of its adoption, and would become vacant five more times during the 61 years that it was in effect:[12]
Had the president died, resigned, been removed from office or been disabled during one of these vacancies, the secretary of state would have become the acting president. Although such circumstances never arose, PresidentWoodrow Wilson apparently drew up a plan (given the turmoil ofWorld War I) whereby, if his Republican opponentCharles Evans Hughes had won the1916 election, then Wilson would have dismissed his secretary of state,Robert Lansing, andrecess-appointed Hughes to the post before Wilson and Vice PresidentThomas R. Marshall both resigned, thus allowingPresident-elect Hughes to serve as acting president until his March 4, 1917inauguration. Wilson's narrow victory over Hughes rendered the plan moot.[22][23]
Also of note is that1940 Republican presidential nomineeWendell Willkie and vice presidential nomineeCharles L. McNary both died in 1944 (October 8, and February 25, respectively), the first (and as of 2023[update] only) time both members of a major-party presidential ticket died during the term for which they sought election. Had they been elected, Willkie's death would have resulted in the secretary of state becoming acting president for the remainder of the term ending on January 20, 1945.[24][25]
.svg) | |
| Long title | An Act To provide for the performance of the duties of the office of President in case of the removal, resignation, death, or inability both of the President and Vice President. |
|---|---|
| Enacted by | the80th United States Congress |
| Effective | July 18, 1947 |
| Citations | |
| Public law | Pub. L. 80–199 |
| Statutes at Large | 61 Stat. 380 |
| Codification | |
| Acts repealed | Presidential Succession Act of 1886 (Pub. L. 49–4, Session 1; 24 Stat. 1) |
| Titles amended | U.S. Code: Title 3 – The President |
| U.S.C. sections created | § 24; now3 U.S.C. § 19 by Act of Congress June 25, 1948 (62 Stat. 672) |
| U.S.C. sections amended | §§ 21 and 22 (1940 edition) |
| Legislative history | |
| |
| Major amendments | |
Modifications to § 19 (d)(1):
| |
In June 1945, two months after becoming president uponFranklin D. Roosevelt's death, Harry S. Truman sent a message to Congress urging the revision of the Presidential Succession Act of 1886. He recommended that the speaker of the House and president pro tempore of the Senate be restored to, and given priority in, the presidential line of succession over members of the Cabinet. The arrangement reflected Truman's belief that the president should not have the power to appoint to office "the person who would be my immediate successor in the event of my own death or inability to act", and that the presidency should, whenever possible, "be filled by an elective officer". Cabinet officials are appointed by the president, whereas the speaker and the president pro tempore are elected officials.[C] He also recommended that a provision be made for election of a new president and vice president should vacancies in both of those offices occur more than three months before themidterm congressional elections.[8][10][28]
A bill incorporating the president's proposal was introduced in the House on June 25, 1945, byHatton W. Sumners and approved—minus the special election provision—four days later by a wide margin. The measure was forwarded to the Senate, which took no action on it during the balance of the79th Congress. Truman renewed his request in 1947, when the80th Congress convened following the1946 midterm elections. Early in 1947, SenatorKenneth S. Wherry introduced a bill in the Senate which, like the previous 1945 version, put the speaker and the president pro tempore second and third in the succession order respectively, and contained no provision for a special election. After considerable debate the measure was approved on June 27, 1947, by a vote of 50 to 35. Forwarded to the House, the legislation engendered little debate, and was passed on July 10 by a vote of 365 to 11. President Truman signed the bill into law on July 18.[26]
The Presidential Succession Act of 1947 restored the speaker of the House and president pro tempore of the Senate to the line of succession—in reverse order from their positions in the 1792 act—and placed them ahead of the members of the Cabinet, who are positioned once more in the order of the establishment of their department:secretary of state,secretary of the treasury,secretary of war,attorney general,postmaster general,secretary of the navy, andsecretary of the interior. Three Cabinet secretaries were added to the lineup, reflecting the creation of three Cabinet-level departments post-1886:secretary of agriculture,secretary of commerce, andsecretary of labor.[29] The act stipulates, that in order for either the speaker or the president pro tempore to become acting president, he or she must meet the requirements for presidential eligibility, and must, prior to acting as president, resign from office, including from Congress.
Like the 1886 act, this statute specifies that only Cabinet members who are constitutionally eligible to the office of president, and not under impeachment by the House at the time the powers and duties of the presidency devolve upon them, may become the acting president. However, unlike the 1886 act, this statute mandates that any Cabinet officer who accedes to the powers and duties of the presidency resign their Cabinet post.[16] It also contains a clause stipulating that any Cabinet officer acting as president may be "bumped" from office (supplanted) by a qualified individual higher up the line of succession, a provision not contained in either of the earlier succession acts.[30]
The 1886 and 1947 acts diverge in one other way. The 1886 act describes "such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named" as being eligible to serve as acting president, whereas the 1947 act describes "officers appointed, by and with the advice and consent of the Senate" as being eligible.[30] The less explicit 1947 language raises the question of whether acting secretaries are in the line of succession. ThenonpartisanContinuity of Government Commission, in a 2009 report, said "[r]ead 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)."[31] Although a case for their inclusion can be made, it is not clear whether acting secretaries are indeed in the line of succession.[32]
The 1947 act established that a person who becomes an acting president under the act will earn the same compensation given to the president.[10] Additionally, based on authority granted by Section 3 of theTwentieth Amendment, the act applies to situations where the president-elect, alone or together with the vice president-elect, fails to meet the qualifications for the office of president. Based on that same authority, the act also applies to situations in which there is neither a president-elect nor a vice president-elect onInauguration Day.[31]
The 1947 act has been modified by a series of incidental amendments to reflect the creation of new federal departments.[3] Less than two weeks after the Act was enacted, Truman signed theNational Security Act of 1947 into law. This statute (in part) merged theDepartment of War (renamed as theDepartment of the Army) and theDepartment of the Navy into the National Military Establishment (renamedDepartment of Defense in 1949), headed by thesecretary of defense.[33] It also included a provision substituting the secretary of defense for the secretary of war in the line of succession and striking out the secretary of the navy.
In 1953, a new Cabinet department was created; this led to the creation of a new position behind the secretary of labor in the line of succession: thesecretary of health, education and welfare. In 1965, another new Cabinet department was created; thesecretary of housing and urban development joined the line of succession. Thesecretary of transportation was added the following year. In 1970 and 1977, respectively, thepostmaster general was removed as a result of thePostal Reorganization Act, and thesecretary of energy was inserted at the end of the list. In 1979, when the Department of Health, Education, and Welfare was divided by theDepartment of Education Organization Act, its secretary was replaced in the order of succession by thesecretary of health and human services, and the newsecretary of education was added in the last position. In 1988 and 2006, respectively, thesecretary of veterans affairs and then thesecretary of homeland security were added, becoming the 16th and 17th statutory successors (including the vice president) to the powers and duties of the presidency.[10][34]
When the Department of Homeland Security was created in 2002, theact creating it did not contain a provision adding the new department's secretary into the line of presidential succession. Secretaries of newly created cabinet-level departments are not automatically included, but must be specifically incorporated.[3] Companion bills to include the secretary of homeland security (SHS) in the line of succession were introduced in the108th Congress (in 2003) and again in the109th (in 2005) by SenatorMike DeWine and RepresentativeTom Davis. Both bills strayed from tradition, however, by proposing to place the SHS in the line of succession directly after the attorney general (rather than at the end of the line). Proponents of placing the SHS high in the order of succession (eighth overall, as opposed to seventeenth) argued that, given the department's many responsibilities in the areas of security and national preparedness, the officer responsible for disaster relief and security could be expected to possess the relevant knowledge and expertise to capably function as acting president following a catastrophic event; the same could not be said of every cabinet secretary. Referred to committee, no action was taken on these proposals.[30] The matter remained unresolved until March 2006, when theUSA PATRIOT Improvement and Reauthorization Act added the secretary of homeland security to the presidential line of succession, at the end.[35]
While it has not become necessary to invoke the 1947 Act, the vice presidency was vacant at the time of its adoption, and has been vacant three more times since:[12]
Had the president died, resigned, been removed from office, or been disabled during one of these vacancies the speaker of the House would have become acting president. The nation faced the prospect of such a double-vacancy in the autumn of 1973. With the future ofRichard Nixon's presidency in doubt on account of theWatergate scandal, and with the vice presidency vacant following Spiro Agnew's resignation, there was a possibility that Speaker of the HouseCarl Albert might become acting president.[36] Recourse in this case to the 1947 Act was not necessary, because Section 2 of theTwenty-fifth Amendment, ratified only six years earlier, established a mechanism for filling an intra-term vice presidential vacancy, andHouse Minority Leader Ford was appointed. As a result, rather than Speaker Albert becoming acting president when Nixon resigned on August 9, 1974, Vice President Ford became president on that date.[36]
The Twenty-fifth Amendment also established a procedure for responding to presidential disabilities whereby a vice president could assume the powers and duties of the presidency as acting president. Its procedures for declaring a temporary disability have been invoked on four occasions by three presidents.[37]
During theSeptember 11, 2001 terrorist attacks, theSecret Service carried out itsplan for ensuring thecontinuity of government, which in part called for gathering up persons in the presidential line of succession and taking them to asecure location, to guarantee that at least one officer in the line of succession would survive the attacks.[38] Speaker of the HouseDennis Hastert and several other congressional leaders went;[39] President pro tempore of the Senate Robert Byrd did not, choosing instead to be taken to hisCapitol Hill home. Vice President Dick Cheney and Secretary of TransportationNorman Mineta went into an underground bunker at the White House; a few Cabinet members were out of the country that day.[40]
There is a long history, dating back to theCold War era,[41] of keeping adesignated successor away from events at which numerous high-ranking federal officers—including the president, vice president, congressional leaders, and Cabinet members—will be gathered. This is done to ensure that there is always someone available to assume the reins of government if all the other officers are killed at the event. For example, Secretary of AgricultureSonny Perdue was the Cabinet member so designated when PresidentDonald Trump delivered his2018 State of the Union Address. Perdue was taken to a secure location several hours beforehand, and remained there throughout the event. Although any cabinet secretary could be selected, the person appointed has usually come from one of the newer departments low in the line of succession.[42] The person chosen must also meet the constitutional requirements to serve as president.[41]
The 1947 act has been widely criticized over the years as unconstitutional.[43]Akhil Amar, who is alegal scholar inconstitutional law, has called it "a disastrous statute, an accident waiting to happen".[44] There are two main areas of concern.
There are concerns regarding the constitutionality of having members of Congress in the line of succession. The Constitution's Succession Clause—Article II, Section 1, Clause 6—specifies that only an "Officer" may be designated as a presidential successor. Constitutional scholars fromJames 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. During a September 2003 joint hearing before the U.S. Senate'sCommittee on Rules and Administration andCommittee on the Judiciary,M. 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.[45]
In "Is the Presidential Succession Law Constitutional?", Akhil Amar andVikram Amar refer to theIncompatibility Clause (Article I, Section 6, Clause 2)—which bars officials in the federal government's executive branch from simultaneously serving in either the U.S. House or Senate—as evidence that members of the Congress cannot be in the Presidential line of succession.[16]
The current act is also controversial because it provides that an officer who is acting as president due to the disability or failure to qualify of an officer higher in the order of succession does so only until the other officer's disability or disqualification is removed. If this happens, the previously entitled officer can "bump" the person then acting as president.[30] During testimony in 2004 before theUnited States House Judiciary Subcommittee on the Constitution and Civil Justice, Akhil Reed Amar stated that this provision violates "the Succession Clause, which says that an officer named by Congress shall 'act as President ... until the Disability be removed, or a President shall be elected'".[46]
In its 2009 report, theContinuity of Government Commission argued that as well as going against the language of the Constitution, bumping violates the doctrine ofseparation 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.[31]
On a practical level, it has been argued that this provision could result in there being multiple acting presidents in a short period of time during a national crisis and weaken the public legitimacy of successors.[32][46] In a January 2011Roll Callop-ed, RepresentativeBrad Sherman wrote,
[The bumping provision] creates a game ofmusical chairs with the presidency and would cause great instability. In a time of national crisis, the nation needs to know who its president is.[47]
Princeton.
country without any one in the line of succession.
If the Republican ticket had been elected in 1940, the plan of succession adopted in 1886 would probably have come into operation for the first time in 1944. Charles McNary, Republican candidate for Vice President, died on Feb. 25, 1944, With the death of Wendell Willkie, on Oct. 8, his Secretary of State would have been sworn in for the remainder of the term ending on Jan. 20, 1945.
