United States presidential line of succession

The presidential line of succession defines who may become or act as President of the United States, upon the death, resignation, or removal from office (by impeachment and subsequent conviction) of a sitting President. The line of succession is mentioned in two places in the Constitution; in Article II, Section 1 and the 25th Amendment.

Article II, Section 1 provided that the Vice President was first in the line of succession and also provided that if neither the President nor Vice President can serve, the Congress shall provide law stating who is next in line. Currently that law exists as 3 USC 19, a section of the U.S. Code. The current succession law was established as part of the Presidential Succession Act of 1947.

The 25th Amendment, ratified in 1967, reiterates what is stated in Article II, Section 1: that the Vice President is the direct successor of the President. He or she becomes President if the President cannot serve for whatever reason. The 25th also provides for the situation where the President is temporarily disabled, such as if the President has a surgical procedure or if he or she becomes mentally unstable. It also required Vice Presidential vacancies to be filled by the President. Previously, when a Vice President had ascended to the Presidency or otherwise left the office empty (through death, resignation, or removal from office), the Vice Presidency remained vacated.

Table of contents

1 "Acting President" versus "President"
2 History of succession law set by Congress
3 No historical successions beyond Vice President
4 Current line of succession
5 Theories regarding exhaustion of the list
6 External links

"Acting President" versus "President"

Vice President Lyndon Johnson is sworn in as President aboard Air Force One, following the assassination of John F. Kennedy

Article II, Section 1 provided 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 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."

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 US 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. This precedent was followed thereafter, and was clarified by section one of the 25th Amendment. The 25th amendment specifies that "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President." However, it does not specify whether officers other than the Vice President can become President rather than Acting President in the same set of circumstances.

US Code 3 USC 19 does further clarify that officers other than the Vice President may only act as President.

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 Anti-Federalists. 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 an Anti-Federalist leader. There were also concerns about including the Chief Justice of the Supreme Court 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.

This remained in effect until 1886 when Congress replaced the President pro tempore and Speaker with officers of the President's Cabinet with the Secretary of State falling 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 no 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 S. Truman, added the Speaker of the House and President pro tempore back in the line, but switched the two from the 1792 order. It is the sequence used today.

By tradition, the order of Cabinet members is based on the order in which their respective departments were established. However, when the 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 and above the Secretary of the Interior) 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 list in this position is still pending in Congress.

No historical successions beyond Vice President

Vice President Gerald Ford is sworn in as the 38th President of the United States following the resignation of Richard Nixon.

While nine Vice Presidents have succeeded to the office upon the death or resignation of the President, no lower officer has ever been called upon to act as President. In 1868 Senate President pro tempore Benjamin Wade nearly became President when Andrew Johnson came extremely close to being removed while there was no Vice President (as the office was vacant following his succession of Abraham Lincoln as President). Another close call came in 1973 during the Watergate crisis, when House Speaker Carl Albert was second in line during the two months late in the year in which Richard Nixon had no Vice President and was widely expected to resign. Albert was also second in line during the first four months of Gerald Ford's presidency.

In 1981, after President Reagan was shot – at a time when Vice President Bush was traveling in Texas – Secretary of State Alexander Haig responded to a reporter's question regarding who was running the government by stating that he was "in charge" at the White House. This claim was quickly denounced by many, as according to the line of successon below, Haig was still two positions away from legally assuming "control." However, it has also been pointed out that much of the controversy was the result of Haig being in conflict with the Presidential Chief of Staff. It is possible that Haig only intended to mean that he was personally overseeing executive matters at the White House pending the Vice President's return.

Current line of succession

Here is the Presidential line of succession, as specified by 3 USC 19 (and the current office holder):

The Secretary of Homeland Security (Tom Ridge) is not currently (as of July, 2004) in the line of succession. On June 27, 2003, the Senate approved S. 148, which would add the Secretary of Homeland Security to the line of succession after the Attorney General; that legislation is currently pending in the House. Other bills to add the Secretary of Homeland Security to the line of succession have been introduced in both houses of Congress, with each bill proposing various other changes in the succession procedures.

Of the above candidates, Secretary Elaine Chao is ineligible to assume the Presidency, as she is not a natural born citizen. Since Article Two establishes only eligibility requirements for the "office of President", and since these officials, according to the Constitution, "act as President", it had been a subject of controversy whether they would be constitutionally eligible (the same Constitutional question also exists for the residency and age requirements). To avoid a needless Constitutional dispute at what would likely be a time of great crisis, the statute, at 3 USC 19(e), specifies that even the acting President must meet the Constitutional requirements for the office of President.

Theories regarding exhaustion of the list

Though the statutory list of Presidential succession only has 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 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 to assume the presidency.

There are no explicit provisions for what would happen in the case that everyone on the list was dead, unable to serve, or otherwise ineligible to assume the Presidency. Although this situation may seem unlikely, the possibility of such an occurrence was discussed with some frequency after the September 11 Terrorist Attack.

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 and are not in the line of presidential succession. It appears, however, that if Congress were still able to convene that the House could elect a new speaker or the Senate could elect a new President Pro Tempore that would immediately become acting President. However, 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 terrorist attack. This possibility has caused some discussion on constitutional or legal remedies, although no formal action has been taken.

External links

US Code: Title 3, Chapter 1, Section 19
"Presidential Line of Succession Examined", September 20, 2003