Presidential Succession Act

While the succession provisions of the 1792 Act were never invoked, there were ten instances when the vice presidency was vacant:[11]

• April 20, 1812 – March 4, 1813 (318 days) following the death of George Clinton
• November 23, 1814 – March 4, 1817 (2 years, 101 days) following the death of Elbridge Gerry
• December 28, 1832 – March 4, 1833 (66 days) following the resignation of John C. Calhoun
• April 4, 1841 – March 4, 1845 (3 years, 334 days) following the accession of John Tyler to the presidency
• July 9, 1850 – March 4, 1853 (2 years, 238 days) following the accession of Millard Fillmore to the presidency
• April 18, 1853 – March 4, 1857 (3 years, 320 days) following the death of William R. King
• April 15, 1865 – March 4, 1869 (3 years, 323 days) following the accession of Andrew Johnson to the presidency
• November 22, 1875 – March 4, 1877 (1 year, 102 days) following the death of Henry Wilson
• September 19, 1881 – March 4, 1885 (3 years, 166 days) following the accession of Chester A. Arthur to the presidency
• November 25, 1885 – March 4, 1889 (3 years, 99 days) following the death of Thomas A. Hendricks

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:

• In 1844, President John Tyler narrowly missed being one of the several people killed when a gun on newly built USS Princeton exploded during a ceremonial cruise. Had Tyler died, President pro tempore Willie Person Mangum would have become acting president.[12][13]
• In 1865, the conspirators in the assassination of Abraham Lincoln planned, but failed, to assassinate Vice President Andrew Johnson and Secretary of State William H. Seward as well. Had Johnson also been killed, Senate President pro tempore Lafayette S. Foster would have become acting president.[14]
• In 1868, after President Andrew Johnson was impeached by the House of Representatives, the Senate came one vote short of removing Johnson from office in his impeachment trial. Had he been removed, President pro tempore Benjamin Wade would have become acting president, as the vice-presidency remained vacant after Johnson succeeded to the presidency.[15]

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.[16] Several who served during these vacancies were referred to informally as "Acting Vice President".[17]

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:[11]

• November 21, 1899 – March 4, 1901 (1 year, 103 days) following the death of Garret Hobart.
• September 14, 1901 – March 4, 1905 (3 years, 171 days) following the accession of Theodore Roosevelt to the presidency.
• October 30, 1912 – March 4, 1913 (125 days) following the death of James S. Sherman.
• August 2, 1923 – March 4, 1925 (1 year, 214 days) following the accession of Calvin Coolidge to the presidency.
• April 12, 1945 – January 20, 1949 (3 years, 283 days) following the accession of Harry S. Truman to the presidency.

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, President Woodrow Wilson apparently drew up a plan (given the turmoil of World War I) whereby, if his Republican opponent Charles Evans Hughes had won the 1916 election, then Wilson would have dismissed his secretary of state, Robert Lansing, and recess-appointed Hughes to the post before Wilson and Vice President Thomas R. Marshall both resigned, thus allowing President-elect Hughes to serve as acting president until his March 4, 1917 inauguration. Wilson's narrow victory over Hughes rendered the plan moot.[20][21]

Also of note is that 1940 Republican presidential nominee Wendell Willkie and vice presidential nominee Charles L. McNary both died in 1944 (October 8, and February 25, respectively), the first (and as of 2023 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.[22][23]

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 the National Security Act of 1947 into law. This statute (in part) merged the Department of War (renamed as the Department of the Army) and the Department of the Navy into the National Military Establishment (renamed Department of Defense in 1949), headed by the secretary of defense.[31] It also included a provision substituting Secretary of Defense for Secretary of War in the line of succession and striking out the Secretary of the Navy.

In 1965, two new Cabinet departments were created; this led to the creation of two positions behind the secretary of labor in the line of succession: the secretary of health, education, and welfare and the secretary of housing and urban development. A third, the secretary of transportation, was added the following year. In 1970 and 1977, respectively, the postmaster general was removed as a result of the Postal Reorganization Act, and the secretary of energy was inserted at the end of the list. In 1979, when the Department of Health, Education, and Welfare was divided by the Department of Education Organization Act, its secretary was replaced in the order of succession by the secretary of health and human services, and the new secretary of education was added in the last position. In 1988 and 2006, respectively, the secretary of veterans affairs and then the secretary of homeland security were added, becoming the 16th and 17th statutory successors (beyond the vice president) to the powers and duties of the presidency.[9][32]

When the latter department was created in 2002, the act 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 the 108th Congress (in 2003) and again in the 109th (in 2005) by Senator Mike DeWine and Representative Tom 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 eighteenth) 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 acting as 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.[28] The matter remained unresolved until March 2006, when the USA PATRIOT Improvement and Reauthorization Act added the secretary of homeland security to the presidential line of succession, at the end.[33]

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:[11]

• November 22, 1963 – January 20, 1965 (1 year, 59 days) following Lyndon B. Johnson succeeding to the presidency
• October 10, 1973 – December 6, 1973 (57 days) following Spiro Agnew resigning the vice presidency
• August 9, 1974 – December 19, 1974 (132 days) following Gerald Ford succeeding to the presidency

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 of Richard Nixon's presidency in doubt on account of the Watergate scandal, and with the vice presidency vacant following Spiro Agnew's resignation, there was a possibility that Speaker of the House Carl Albert might become acting president.[34] Recourse in this case to the 1947 Act was not necessary, because Section 2 of the Twenty-fifth Amendment, ratified only six years earlier, established a mechanism for filling an intra-term vice presidential vacancy. As a result, rather than Carl Albert becoming acting president when Richard Nixon resigned on August 9, 1974, Vice President Gerald Ford became president on that date.[34]

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.[35]

During the September 11, 2001 terrorist attacks, the Secret Service carried out its plan for ensuring the continuity of government, which in part called for gathering up persons in the presidential line of succession and taking them to a secure location, to guarantee that at least one officer in the line of succession would survive the attacks.[36] Speaker of the House Dennis Hastert and several other congressional leaders went;[37] President pro tempore of the Senate Robert Byrd did not, choosing instead to be taken to his Capitol Hill home. Vice President Dick Cheney and Secretary of Transportation Norman Mineta went into an underground bunker at the White House; a few Cabinet members were out of the country that day.[38]

There is a long history, dating back to the Cold War era,[39] of keeping a designated 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 Agriculture Sonny Perdue was the Cabinet member so designated when President Donald Trump delivered his 2018 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.[40] The person chosen must also meet the constitutional requirements to serve as president.[39][upper-alpha 4]

The 1947 act has been widely criticized over the years as unconstitutional.[41] Akhil Amar, who is a legal scholar in constitutional law, has called it "a disastrous statute, an accident waiting to happen".[42] 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 from James 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's Committee on Rules and Administration and Committee 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.[43]

In "Is the Presidential Succession Law Constitutional?", Akhil Amar and Vikram Amar refer to the Incompatibility 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.[15]

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.[28] During testimony in 2004 before the United 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'".[44]

In its 2009 report, 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.[29]

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.[30][44] In a January 2011 Roll Call op-ed, Representative Brad Sherman wrote,

[The bumping provision] creates a game of musical chairs with the presidency and would cause great instability. In a time of national crisis, the nation needs to know who its president is.[45]