Presidential Succession Act

The Presidential Succession Act of 1947 (usc|3|19) establishes the line of succession to the office of President of the United States in the event that neither a President or Vice President is able to "discharge the powers and duties of the office."

Congressional authority to enact such a law is twofold: of the United States Constitution and Section 3 of the Twentieth Amendment to the Constitution.

Previous Acts

Presidential Succession Act of 1792

Provisions

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 United States Senate would act as President, followed by the Speaker of the United States House of Representatives, until the holding of a special election for President and Vice President. [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, [http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=362 1 Stat. 239] , [http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=363 § 9-10] (March 1, 1792)]

Potential implementation

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 include:

* Following the deaths of Presidents William Henry Harrison, Zachary Taylor, Abraham Lincoln, and James A. Garfield.
* Following the deaths of Vice Presidents George Clinton, Elbridge Gerry, William R. King, Henry Wilson, and Thomas A. Hendricks.
* Following the resignation of Vice President John C. Calhoun in December, 1832.

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. [IS THE PRESIDENTIAL SUCCESSION LAW CONSTITUTIONAL?, 48 Stan. L. Rev. 113 (November 1995)]

Presidential Succession Act of 1886

Provisions

In 1886, a new Presidential Succession Act was adopted, [24 Stat. 1] 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 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.

Potential implementation

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:

* Following the deaths of Presidents William McKinley, Warren G. Harding and Franklin D. Roosevelt.
* Following the deaths of Vice Presidents Garret Hobart and James Sherman.

Current Act

Text

"'§ 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."

Changes made by the 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 Defense Department in the place that had been held by the Department of War.

Potential implementation

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 Spiro T. Agnew's resignation as Vice President in 1973, and the following year in the interim between Gerald R. Ford's succession to the presidency and the confirmation of Vice President Nelson Rockefeller. In both cases, this was avoided by the ability to fill Vice Presidential vacancies.

During the September 11, 2001 terrorist attack, 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.

This act makes no provision for the unlikely event that all eligible people on the succession list perish before one can assume the presidential powers and duties.

Revisions

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 several bills to that effect were 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. [§ 503 of USPL|109|177] In the 109th Congress, legislation was introduced to place the Secretary of Homeland Security into the line of succession after the Attorney General, [S. 442, 109th Cong., February 17, 2005] but the bill expired at the end of the 109th Congress and has not been re-introduced.

Constitutionality

There are also concerns regarding the Constitutionality of having members of the 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. Yale Law School Professor Akhil Reed Amar says the current Presidential Succession Act is "a disastrous statute, an accident waiting to happen." [ [http://www.aei.org/publications/pubID.19776,filter.all/pub_detail.asp AEI - Short Publications - It's Armageddon] 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. [www.continuityofgovernment.org/pdfs/091603MillerTestimony.pdf]

In "Is the Presidential Succession Law Constitutional", (48 Stan. L. Rev. 113 (1995)), Akhil Reed Amar and Vikram David 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. [http://caselaw.lp.findlaw.com/data/constitution/article01/]

This doesn't mean that the Presidential Succession Act of 1947 would be declared unconstitutional if it came before a court. In "The Political Question of Presidential Succession" (48 Stan. L. Rev. 155 (1995)) Steven G. Calabresi suggests that this Act's Constitutionality could be ruled to be a Political Question.

Twenty fifth Amendment

Following the assassination of President John Kennedy in 1963 and fully now in the Cold War mindset, Congress submitted, and the states quickly ratified, the Twenty fifth Amendment to the Constitution, Section 2 of which permits the President to nominate a Vice President should the Vice Presidency become vacant.

While not directly impacting the Presidential Succession Act, Section 2 of the amendment has significantly reduced the likelihood (barring catastrophic circumstances) of a Speaker of the House of Representatives being needed to act as President.

Next in line

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):

After the Presidential Succession Act of 1792

References

ee also

* United States presidential line of succession
* Acting Vice President of the United States

External links

* [http://www.fas.org/sgp/crs/misc/RL31761.pdf 'Presidential and Vice Presidential Succession: Overview and Current Legislation"] , Congressional Research Service Report for Congress, Order Code RL31761, September 27, 2004
* [http://www.fas.org/sgp/crs/misc/RL32969.pdf "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
* [http://www.amendment25.com Amendment25.com]
* [http://www.fed-soc.org/publications/pubID.123/pub_detail.asp Fools, Drunkards, & Presidential Succession]
* [http://www.continuityofgovernment.org/ Continuity of Government Commission]
* [http://www.senate.gov/comm/rules_and_administration/general/hearings/2003/091603_baker.htm Testimony of M. Miller Baker]