Acting President of the United States

The qualifications for acting president are the same as those for the office of president. Article II, Section 1, Clause 5 of the Constitution prescribes three eligibility requirements for the presidency. At the time of taking office, one must be a natural-born citizen of the United States, at least thirty-five years old, and a resident of the United States for at least fourteen years.[1]

Article II, Section 1, Clause 6 makes the vice president first in the line of succession. It also empowers Congress to provide by law who would act as president in the case where neither the president nor the vice president were able to serve.[2]

Two constitutional amendments elaborate on the subject of presidential succession and fill gaps exposed over time in the original provision:[3]

• Section 3 of the Twentieth Amendment declares that if the president-elect dies before their term begins, the vice president-elect becomes president on Inauguration Day and serves for the full term to which the president-elect was elected, and also 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. It also authorizes Congress to provide for instances in which neither a president-elect nor a vice president-elect have qualified.[4] Acting on this authority, Congress incorporated "failure to qualify" as a possible condition for presidential succession into the Presidential Succession Act of 1947.[5]
• Sections 3 and 4 of the Twenty-fifth Amendment provide for situations in which the president is temporarily or indefinitely unable to discharge the powers and duties of their office.[6]
  • The former section enables the president to voluntarily transfer their powers and duties (but not the office itself) to the vice president (who becomes acting president), by notifying the president pro tempore of the Senate and the Speaker of the House of Representatives. The vice president remains acting president until such a time that the president is able to discharge their powers and duties again.[7][8]
  • The latter section provides a mechanism to remove the president's powers and duties without their consent. It is invoked when the vice president and a majority of the 15 Cabinet secretaries write to the Senate president pro tempore and the House speaker to notify them that the president is unable to discharge their powers and duties. The vice president then immediately assumes the role of acting president. Should the president declare that they are still capable of discharging their powers and duties, the vice president and Cabinet secretaries must write a second letter. If this is received within four days, then the matter is debated and voted on by Congress (with any attempt to permanently install the vice president as acting president requiring a two-thirds majority of each house). If no such letter is received within the time limit, then the president reassumes his powers and duties.[7][8]

1888 illustration of John Tyler receiving notification of William Henry Harrison's death from Chief Clerk of the State Department Fletcher Webster, April 5, 1841

On April 4, 1841, only one month after his inauguration, William Henry Harrison died and was the first U.S. president to die in office.[9] Afterward, a constitutional crisis ensued over the Constitution's ambiguous presidential succession provision (Article II, Section 1, Clause 6).[10]

Shortly after Harrison's death, his Cabinet met and decided that John Tyler, Harrison's vice president, would assume the responsibilities of the presidency under the title "Vice-President acting President".[11] Instead of accepting this proposed title, however, Tyler asserted that the Constitution gave him full and unqualified powers of the presidency and had himself sworn in as president; this set a critical precedent for the orderly transfer of power following a president's death.[12] Nonetheless, several members of Congress, such as representative and former president John Quincy Adams, felt that Tyler should be a caretaker under the title of "acting president", or remain vice president in name.[13] Senator Henry Clay saw Tyler as the "vice-president" and his presidency as a mere "regency".[14]

Throughout Tyler remained resolute in his claim to the title of president and in his determination to exercise the full powers of the presidency. The precedent he set in 1841 was followed subsequently on seven occasions when an incumbent president died prior to the presidential succession being enshrined in the Constitution through section 1 of the Twenty-fifth Amendment.[10]

Though the precedent regarding presidential succession due to the president's death was set, questions concerning presidential "inability" remained unanswered, such as what constituted an inability, who determined the existence of an inability, and whether a vice president becomes president for the rest of the presidential term in the case of an inability or if they are merely "acting as president". Due to this lack of clarity, later vice presidents were hesitant to assert any role in cases of presidential inability.[15]

On two occasions, in particular, the operations of the executive branch were hampered due to the fact that there was no constitutional basis for declaring that the president was unable to function:

• For 80 days in 1881, between the shooting of President James Garfield in July and his death in September.[16] Congressional leaders urged Vice President Chester Arthur to step up and exercise presidential authority while the president was disabled, but he declined, fearful of being labeled a usurper. Aware that he was in a delicate position and that his every action was placed under scrutiny, he remained secluded in his New York City home for most of the summer.[17]
• October 1919 – March 1921, when President Woodrow Wilson suffered a debilitating stroke. Nearly blind and partially paralyzed, he spent the final 17 months of his presidency sequestered in the White House.[18] Vice President Thomas R. Marshall, the cabinet, and the nation were kept in the dark concerning the severity of the president's illness for several months by First Lady Edith Wilson, the president's personal physician, and his secretary. Marshall was pointedly afraid to ask about Wilson's health, or to preside over cabinet meetings, fearful that he would be accused of "longing for his place."[19]

Proposed by the 89th Congress and subsequently ratified by the states in 1967, the Twenty-fifth Amendment also established formal procedures for addressing instances of presidential disability and succession.[20] Its Section 3, which allows the president to voluntarily transfer his authority to the vice president, has been invoked on four occasions by three presidents. (Section 4, which addresses the case of an incapacitated president who is unable or unwilling to issue voluntary declaration, has not been activated since the amendment came into force.)[16][21] Three vice presidents have served as acting president on four occasions, each one while the president underwent a medical procedure under general anesthesia.