Presidential Succession Act

The Presidential Succession Act of 1947 (codified as Title 3, Chapter 1, Section 19 of the United States Code) establishes the order of succession to the office of President of the United States in the event neither a President nor Vice President is able to "discharge the powers and duties of the office."

See: United States presidential line of succession

Contents

1 History 1.1 Presidential Succession Act of 1792 1.1.1 Provisions of the Act 1.1.2 Potential Implementation 1.2 Presidential Succession Act of 1886 1.2.1 Provisions of the Act 1.2.2 Potential Implementation 1.3 Current Act (1947) 1.3.1 Provisions of the Act 1.3.2 25th Amendment 1.3.3 Potential Implementation 1.3.4 Revisions since 1947 and Omission of Secretary of Homeland Security 2 Text of Current Law

History

Presidential Succession Act of 1792

Provisions of the Act

The initial version of the Presidential Succession Act was adopted in 1792. The act declared that, in the event of the death of both the President and Vice President, the President Pro Tempore of the Senate would act as President, followed by the Speaker of the House of Representatives.

There were concerns about including the Chief Justice of the Supreme Court in the succession order due to separation of powers. Though somewhat ironic considering that two legislative officers were placed immediately after the Vice President, but ultimately he was excluded, a practice that continues to this day.

Potential Implementation

While the 1792 act was never implemented, and no one below the Vice Presidency ever succeeded to the presidency, there were a number of instances where, had the President died, resigned, or been removed from office, the Senate President would have succeeded to the office. These include:

• Following the deaths of Presidents William Henry Harrison, Zachary Taylor, Abraham Lincoln, and James A. Garfield. In each case the Vice President succeeded to the presidency, but the office of Vice President was left vacant - leaving the President Pro Tempore next in line.
• Following the deaths of Vice Presidents George Clinton, Elbridge Gerry, William Rufus deVane King, Henry Wilson, and Thomas Andrews Hendricks. Again in each case, the Vice Presidency was left vacant, leaving the President Pro Tempore next in line.
• Following the resignation of Vice President John Caldwell Calhoun in December, 1832.

The closest the act came to implementation occurred in 1868 however, 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 convicted and removed from office, Benjamin Franklin Wade, President Pro Tempore, would have served out the remainder of the term as Acting President.

Presidential Succession Act of 1886

Provisions of the Act

The death of Vice President Thomas Andrews Hendricks on November 25, 1885 marked the third time in 20 years that the Vice Presidency had been left vacant due to death or succession.

In 1886 a new version of the act was passed by Congress, removing the Congressional officers from the list and replacing them 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 no Congressional leaders had done so to that time, the change was widely accepted.

Potential Implementation

As with the original 1792 act, the act of 1886 was never implemented, and no one below the Vice Presidency ever succeeded to the presidency, but again there were instances where, had the President died, resigned, or been removed from office, the Secretary of State would have succeeded to the office. These include:

• Following the deaths of Presidents William McKinley, Warren G. Harding and Franklin D. Roosevelt. The Vice Presidency was left vacant in each case, placing the Secretary of State next in the line of succession.
• Following the deaths of Vice Presidents Garret Hobart and James Sherman. Again, there being no procedure for replacement the Vice Presidency was left vacant, and the Secretary of State remained next in line.

Current Act (1947)

Provisions of 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 House Speaker 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 overall order, directly after the Secretary of the Treasury.

25th 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 25th amendment to the Constitution, which permitted the President to nominate a Vice President should the Vice Presidency become vacant.

While not directly impacting the Presidential Succession Act per se, the ratification of the amendment has significantly reduced the likelihood (barring nuclear or terrorist attack) of a Speaker of the House of Representatives being needed to act as President.

Potential Implementation

To date, as with its predecessors the 1947 act has yet to be implemented. And while there have been instances where, had the President died, resigned, or been removed from office (following Spiro Agnew's resignation as Vice President in 1973, and the following year in the interim between Gerald Ford's succession to the presidency and the confirmation of Vice President Nelson Rockefeller), they have been mitigated somewhat by the ability to fill Vice Presidential vacancies.

During the September 11 2001 terrorist attack, several persons holding offices in the line of succession (among them Speaker Dennis Hastert) were taken to "secure locations" in order to guarantee that at least one officer in the line of succession would survive the attacks.

Revisions since 1947 and Omission of Secretary of Homeland Security

The 1947 act has been modified several times with the addition of new cabinet positions, but the creation of the Department of Homeland Security in 2002 has caused controversy that has resulted in its secretary not yet being placed in the succession order.

Many in Congress feel the Secretary should be placed not at the bottom of the order as is the tradition, but 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.

Despite years of debate, the matter remains unresolved and as a result, the Secretary of Homeland Security is not among those constitutionally eligible to act as President under the act.

Text of Current Law

(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.

(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)

(1) 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.

(2) 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.