“I AM IN CONTROL HERE”: CONSTITUTIONAL AND
PRACTICAL QUESTIONS REGARDING PRESIDENTIAL
SUCCESSION
David A. Erhart*
INTRODUCTION
The President of the United States, shortly after concluding a speech to
representatives of the AFL-CIO, is shot by a would-be assassin. His wounds
are critical and he is raced to the hospital, where he immediately undergoes
emergency surgery. The Vice President is not in Washington, but on an
airplane over Texas. In their absence, the President’s senior advisors—the
Secretaries of State, Treasury, and Defense, along with the Attorney
General, National Security Advisor, and White House Counsel—meet in
the White House Situation Room to determine a course of action. These
advisors argue amongst themselves about whether to place American
military forces on alert in response to the shooting and a report that military
forces of a hostile nation are stationing military assets close to American
strategic positions.
The Speaker of the House of Representatives, a veteran lawmaker of
the opposition party, is not consulted as to the growing crisis, nor is the
President pro tempore of the United States Senate. Both leaders are in
Washington, but are not contacted by the President’s advisors. Instead, at
this critical hour, the Secretary of State takes charge, issuing orders and
directing government. At a press conference, the Secretary of State
addresses the country, incorrectly instructing the public that
constitutionally, after the President and Vice President, he is in charge. His
remarks only serve to exacerbate the day’s confusion and cause countless
millions to ask: Who is in control of the United States Government?
If this situation seems far-fetched, it should not, as it occurred on March
30, 1981.1 On that date, John Hinckley shot President Ronald Reagan as he
exited the Washington Hilton Hotel.2 United States Secret Service agents
∗
J.D., May 2012, Louis D. Brandeis School of Law, University of Louisville; B.A., May 2009,
College of William and Mary. Col. 3:17.
1
JOHN D. FEERICK, THE TWENTY-FIFTH AMENDMENT: ITS COMPLETE HISTORY AND
APPLICATIONS, at ix (2d ed. 1992).
2
Id.
323
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transported President Reagan to George Washington University Hospital,
where he underwent emergency surgery.3
Vice President George H.W. Bush was not in Washington, but rather
onboard Air Force Two over Texas, when the shooting occurred.4
Communication with the Vice President was difficult due to Air Force Two
lacking a “secure voice connection.”5 In the absence of the President and
Vice President, several senior officers of the Executive Branch met in the
White House Situation Room.6 Those in attendance included: Secretary of
State Alexander M. Haig Jr., Secretary of Defense Caspar W. Weinberger,
Secretary of the Treasury Donald T. Regan, Attorney General William
French Smith, National Security Advisor Richard B. Allen, White House
Counsel Fred F. Fielding, Secretary of Transportation Drew Lewis, and
Admiral Daniel Murphy, the Vice President’s Chief of Staff.7 However,
neither Speaker of the House of Representatives Tip O’Neill nor President
pro tempore of the Senate Strom Thurmond were present during this
meeting.8
Spirited discussions occurred in the Situation Room, principally
between Secretaries Haig and Weinberger, over whether to increase United
States military readiness.9 The concern over raising readiness arose from
the shooting and two unconfirmed reports from the Pentagon. The first
indicated the presence of an abnormally large number of Soviet nuclear
submarines off the East Coast of the United States.10 The second report
indicated that the Soviet Army was massing on the Polish border, allegedly
in preparation for an invasion, which would result in the imposition of
martial law in Poland.11
While these discussions were occurring, Deputy Press Secretary Larry
Speakes addressed the White House Press Corps.12 When asked who was
3
Id. at x.
Id. at xi; see also ROBERT E. GILBERT, THE MORTAL PRESIDENCY: ILLNESS AND ANGUISH IN
THE WHITE HOUSE 225 (2d ed. 1998) (“Bush’s plane was just leaving Fort Worth for Austin when he
learned from a Secret Service agent of the attempt on Reagan’s life.”).
5
Interview by Larry King with David Gergen, Former Reagan White House Staff Dir. (Mar. 30,
2001), available at http://transcripts.cnn.com/TRANSCRIPTS/0103/30/lkl.00.html.
6
FEERICK, supra note 1, at xi.
7
Id.; Richard V. Allen, The Day Reagan Was Shot, ATLANTIC MONTHLY, Apr. 2001, at 64,
available at http://www.theatlantic.com/past/docs/issues/2001/04/allen.htm.
8
See FEERICK, supra note 1, at xi; see also Allen, supra note 7.
9
Allen, supra note 7.
10
Id.
11
Interview by Larry King with Richard B. Allen, Former Nat’l Sec. Advisor (Mar. 30, 2001),
available at http://transcripts.cnn.com/TRANSCRIPTS/0103/30/lkl.00.html.
12
Allen, supra note 7; see also FEERICK, supra note 1, at xii (“To calm the nation, Deputy Press
Secretary Larry Speakes conducted a press briefing less than two hours after the shooting, during which
he was unable to answer a number of questions about the President’s health and about the
4
2013]
“I Am in Control Here”
325
running the government, Speakes replied, “I cannot answer that question at
this time.”13 These remarks caused chaos in the briefing room and greatly
annoyed the members of the President’s Cabinet present in the Situation
Room.14 In response, Secretary Haig entered the briefing room, issued a
statement, and then took questions from the press.15 An unidentified
reporter asked, “Who is making the decisions for the government right
now? Who is making the decisions?”16 Secretary Haig responded by saying:
Constitutionally, gentlemen, you have the President, the Vice President,
and the Secretary of State, in that order, and should the President decide
he wants to transfer the helm to the Vice President, he will do so. As of
now, I am in control here, in the White House, pending the return of the
Vice President and in close touch with him. If something came up, I would
17
check with him, of course.
Rather than reassure the public, Secretary Haig’s remarks only served
to exacerbate the day’s confusion, as commentators focused attention on his
constitutional gaffe.18 Ultimately, Vice President Bush returned to
Washington to lead the government until President Reagan recovered from
his wounds.19
While the United States suffered no ill effect from Secretary Haig’s
misstatement, it does not mean that the incident is unworthy of
examination. This incident demonstrated flaws in the presidential
succession plan, an alarming prospect given the vital role that the President
plays in the structure of our government.20 Additionally, the potential for
presidential succession has increased due to the possibility of a terrorist
administration’s crisis management plan.”).
13
Allen, supra note 7.
14
Id.
15
Id.
16
Id.
17
Id.
18
Id.
19
Id.
20
FEERICK, supra note 1, at 237; see also RESEARCH & POLICY COMM. OF THE COMM. FOR ECON.
DEV., PRESIDENTIAL SUCCESSION AND INABILITY 9 (1965) [hereinafter PRESIDENTIAL SUCCESSION AND
INABILITY] (“The office of President of the United States is the toughest and most important job in the
world. It has a unique concentration of those powers and responsibilities that in most other nations are
shared by two or three top officials. For this reason vacancies, inability, and transitions in this office are
matters of gravest concern to our country and to the world.”); William F. Brown & Americo R.
Cinquegrana, The Realities of Presidential Succession: “The Emperor Has No Clothes,” 75 GEO. L.J.
1389, 1391 (1987) (“The President of the United States is at once the head of state of the world’s
preeminent nation, the chief executive of one of the largest and most complex governments ever created,
and Commander in Chief of military forces sufficiently powerful to destroy the entire planet.”).
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attack against the leadership of our government.21 Given the importance of
the Presidency both domestically and internationally, it is essential that
there be no doubt about the nation’s law regarding succession to that
office.22 Unfortunately, the current succession law, the Succession Act of
1947 (“1947 Act”), is an unconstitutional and deeply flawed law. The
United States has been fortunate to never have to rely on the 1947 Act or its
predecessors. However, there have been a number of close calls.23
This Note will focus on the history and current provisions regarding
presidential succession. Part I offers additional commentary on Secretary
Haig’s misstatement and on other misstatements of the presidential
succession law in recent years; Part II addresses the history surrounding
presidential succession; Part III discusses constitutional issues with the
1947 Act; Part IV discusses a series of practical issues regarding
presidential succession; and Part V offers recommendations for Congress
on how to revise presidential succession in order to avoid potentially
disastrous consequences.
I. PRESIDENTIAL SUCCESSION CONFUSION
It is very interesting that Secretary Haig was mistaken about the
succession issue. Secretary Haig was not a newcomer to politics when he
was named Secretary of State during the Reagan Administration.24 He had
21
John C. Fortier & Norman J. Ornstein, Presidential Succession and Congressional Leaders, 53
CATH. U. L. REV. 993, 993 (2004); see also ROSE MCDERMOTT, PRESIDENTIAL LEADERSHIP, ILLNESS,
AND DECISION MAKING 220 (2008) (“In the age of terrorism, the assassin may not strike only at one
person but at a whole group of people, as the 9/11 attack on the Pentagon demonstrated. In such an
environment, the importance of succession becomes particularly pressing.”); Howard M. Wasserman,
The Trouble with Shadow Government, 52 EMORY L.J. 281, 281 (2003) (“The September 11 terrorist
attacks and the subsequent War Against Terrorism have brought to the fore the possibility of a
catastrophic terrorist attack, perhaps involving small concealed nuclear devices, laying waste to all of
Washington, D.C., killing the president and vice president, and destroying Congress and the federal
government.”).
22
FEERICK, supra note 1, at 237.
23
JOHN D. FEERICK, The Twenty-Fifth Amendment: Its Origins and History, in MANAGING CRISIS:
PRESIDENTIAL DISABILITY AND THE TWENTY-FIFTH AMENDMENT 1, 8; see also FEERICK, supra note 1,
at 39–40 (noting that in 1853, President Franklin Pierce suffered from malaria; there was no Vice
President to succeed him had he succumbed to the illness); DONALD YOUNG, AMERICAN ROULETTE:
THE HISTORY AND DILEMMA OF THE VICE PRESIDENCY 384–85 (1972) (noting that in 1844, the Vice
Presidency was vacant, as John Tyler had become President upon the death of William Henry Harrison.
During the test of a new naval gun, Tyler barely escaped death when the gun misfired. Also, “[i]n the
motorcade at Dallas . . . Kennedy and Johnson were both within the assassin’s range at the same
moment. Meanwhile, six members of the Cabinet were flying in the same airplane across the Pacific.”);
Josh Chafetz, Impeachment and Assassination, 95 MINN. L. REV. 347, 396–97 (2010) (noting that in
1865, a plot to kill President Abraham Lincoln, Vice President Andrew Johnson, and Secretary of State
William Seward nearly succeeded in killing all three officials).
24
See Alexander M. Haig Files, 1973–74, GERALD R. FORD PRESIDENTIAL LIBRARY & MUSEUM,
http://www.fordlibrarymuseum.gov/library/guides/findingaid/haigafiles.asp#bio (last visited July 4,
2013]
“I Am in Control Here”
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previously served as White House Chief of Staff under Richard Nixon.25
After leaving the Nixon White House, Secretary Haig served as the
Supreme Allied Commander Europe (“SACEUR”).26 In these two roles,
and in his position as Secretary of State, Secretary Haig obtained a detailed
working knowledge of American government.
In particular, as Supreme Allied Commander Europe, General Haig was
responsible for “the overall command of NATO military operations.”27
Given the considerations of the Cold War, it would have been critical for
General Haig to understand the proper line of presidential succession. A
sudden limited Soviet nuclear attack on the United States could have
resulted in a near total decapitation of America’s political leadership.28 In
this situation, General Haig would not have had the authority to release the
nuclear arms under his command; rather, the release of America’s nuclear
deterrent has always required the authorization of the President and the
Secretary of Defense (or their successors).29 In order for General Haig to
initiate a nuclear counterstrike, he would have had to wait for confirmation
of the identities of these two leaders (or their successors) and their orders
granting him permission to strike.30 Given that this situation was quite
possible during the Cold War, Haig would likely have been fully briefed on
continuity of government operations.
This is not meant as an indictment of Secretary Haig; rather, it
demonstrates that even for an official with detailed government experience,
these practical aspects of presidential succession were unclear.
Additionally, in the White House Situation Room on the day Reagan was
shot were the Attorney General and the White House Counsel.31 When
Secretary Haig made his misstatement, either man could have made a
statement to the press clearing up the matter. However, the lack of a
2012).
25
Id.
Id.
27
Supreme Allied Commander Europe (SACEUR), N. ATL. TREATY ORG., http://www.nato.int/cps/
en/natolive/topics_50110.htm (last visited Oct. 2, 2012).
28
John D. Steinbruner, Nuclear Decapitation, FOREIGN POL’Y, Winter 1981–1982, at 16, 19.
29
DOD Directive 5100.30 § 3.1, World-Wide Military Command and Control System
(WWMCCS) (Dec. 2, 1971) (“The chain of command runs from the President to the Secretary of
Defense and through the Joint Chiefs of Staff to the Commanders of the Unified and Specified
Commands.”).
30
STEPHEN J. CIMBALA, MILITARY PERSUASION: DETERRENCE AND PROVOCATION IN CRISIS AND WAR
102 (1994) (“Important safeguards against military usurpation included the precise specification of a
National Command Authority (the president, the secretary of defense, and/or their duly authorized
successors) atop the military chain of command, including the chain of command for releasing and firing
nuclear weapons.”).
31
Allen, supra note 7.
26
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statement from either man raises questions as to their understanding of the
law governing presidential succession.
It would be one thing if this 1981 incident were an aberration, a onetime mistake by our elected officials in a time of crisis. However, this has
not been the case. In the years since Secretary Haig’s misstatement, there
have been repeated misstatements of the law governing presidential
succession by elected officials and media outlets. A notable recent case
occurred in 2002, when former Senator Trent Lott was criticized for making
statements supportive of Senator Strom Thurmond’s 1948 presidential
campaign.32 In criticizing Senator Lott, several members of the House of
Representatives and media outlets highlighted their concern that Senator
Lott was “four heartbeats from the presidency.”33 This was wholly
inaccurate, as the President pro tempore of the Senate, rather than the
Senate Majority Leader, is in the line of succession.34 In the event of the
inability of the President, Vice President, and Speaker of the House to
discharge the office and duties of President, the Presidency would have
fallen to Senator Ted Stevens, the President pro tempore, rather than
Senator Lott.35
This incident, along with Secretary Haig’s and the other misstatements
that have occurred regarding presidential succession, make it clear that
there is a great deal of confusion about the nature of presidential succession.
This confusion is due in large part to the complex history regarding
presidential succession.
II. THE HISTORY OF PRESIDENTIAL SUCCESSION
The process for presidential succession is controlled by a combination
of constitutional provisions and a federal statute. In the event of the removal
of the President, or of his death or resignation, the Twenty-Fifth
Amendment to the United States Constitution provides that the Vice
President shall become President.36 However, the Twenty-Fifth Amendment
does not address the line of succession past the Vice President.37
32
Thomas B. Edsall, Lott Decried for Part of Salute to Thurmond, WASH. POST, Dec. 7, 2002, at
A06, available at 2002 WLNR 15309188.
33
Jeff Johnson, Critics Err, Lott Not ‘Four Heartbeats from the Presidency,’ CNSNEWS.COM (July
7, 2008), http://www.cnsnews.com/news/article/critics-err-lott-not-four-heartbeats-presidency.
34
3 U.S.C. § 19 (2006).
35
Stevens, Theodore Fulton (Ted), (1923–2010), BIOGRAPHICAL DIRECTORY OF THE U.S.
CONGRESS, http://bioguide.congress.gov/scripts/biodisplay.pl?index=s000888 (last visited Oct. 2, 2012)
[hereinafter Ted Stevens Biography] (stating that Stevens was the President pro tempore at the time,
making him third in the line of succession).
36
U.S. CONST. amend. XXV, § 1.
37
Id.
2013]
“I Am in Control Here”
329
Determining who should succeed the President and Vice President is a
duty that the Constitution assigns to the Congress.38 Congress has the power
to determine the line of succession after the Vice President under Article II,
Section I, Clause VI.39 Pursuant to this constitutionally granted authority,
Congress has passed three laws regarding presidential succession: in 1792,
1886, and 1947.
A. The Presidential Succession Act of 1792
Who should succeed the President and Vice President was an issue
debated by the first Congress. Attempts to pass legislation to address this
issue ran into two principal problems. First, not all members of Congress
were convinced that immediate action was required.40 Representative
Aedanus Burke of South Carolina was among those who was unconcerned;
Representative Burke calculated that “only once every 840 years would
both the President and Vice President die during the same term.”41
Second, even among those members who believed that a succession law
was urgently needed, there was serious disagreement about who should be
in line to assume the Presidency.42 Potential candidates included the
Secretary of State, the Secretary of the Treasury, the Speaker of the House
of Representatives, the President pro tempore of the United States Senate,
and the Chief Justice of the Supreme Court of the United States.43 James
Madison objected to the inclusion of the Chief Justice and the President pro
tempore due to concerns over separation of powers.44 Madison believed that
the Secretary of State should assume the Presidency if there were a
vacancy.45 However, critics believed this would give the President too much
power in the selection of a potential successor.46 Congress was unable to
reach a consensus and efforts to address succession were dropped.47
During the second Congress, a succession plan was proposed to the
House of Representatives that placed the President pro tempore of the
Senate and the Speaker of the House in the line of succession.48 On January
38
39
40
41
42
43
44
45
46
47
48
U.S. CONST. art. II, § 1, cl. 6.
Id. (tasking Congress with “declaring what Officer shall then act as President”).
FEERICK, supra note 1, at 37.
YOUNG, supra note 23, at 384.
FEERICK, supra note 1, at 37.
Id.
Id.
Id.
Id.
Id.
Id. at 37–38.
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2, 1792, a motion to strike out the President pro tempore failed narrowly,
while a motion to strike the Speaker was carried.49 Proponents of the effort
to remove the legislative officials from the line of succession included a
significant number of framers, including Madison, Thomas Fitzsimmons,
Abraham Baldwin, and Hugh Williamson.50 The bill was then revisited by
the committee, which removed the President pro tempore and replaced him
with the Secretary of State.51 This bill was passed by the House and sent to
the Senate for consideration.52
When the succession bill was being considered, Thomas Jefferson was
serving as Secretary of State.53 His bitter rival, Alexander Hamilton, was
the Secretary of the Treasury and the leader of the Federalist Party, which
controlled the Senate.54 Hamilton was adamantly opposed to placing the
Secretary of State first in the line of succession, as it would enhance
Jefferson’s prestige while damaging Hamilton’s claims to be the head of the
Cabinet.55 As a result, the Senate rejected the House amendment and instead
inserted the President pro tempore and the Speaker.56 The House withdrew
its amendment to the bill on February 21, 1792 by a vote of 31 to 24.57 On
March 1, 1792, President George Washington signed the bill into law.58
B. The Presidential Succession Act of 1886
The recognition of serious problems with the Presidential Succession
Act of 1792 occurred after the assassination President Garfield. When the
Senate had convened in the spring to consider President Garfield’s
appointments, they failed to elect a President pro tempore.59 Further, the
newly elected House of Representatives had failed to choose a Speaker.60
Therefore, when Vice President Chester Arthur assumed the Presidency on
September 19, 1881, there was neither a Speaker of the House nor a
49
Id. at 38.
Id.
51
Id.
52
Id.
53
Id. at 37.
54
Id.
55
See id.; see also YOUNG, supra note 23, at 385 (“This arrangement reflected the desire of
Washington and Hamilton to guard against the possible succession of Thomas Jefferson, the Secretary
of State.”).
56
FEERICK, supra note 1, at 38–39.
57
Id. at 39.
58
Id.
59
YOUNG, supra note 23, at 385.
60
Id. at 385–86.
50
2013]
“I Am in Control Here”
331
President pro tempore of the Senate.61 This was a significant issue, as Vice
President Arthur “was considered by many to be unfit for the Presidency,
and demands were heard for his resignation.”62 Had Arthur given into these
demands, it was unclear who would have been next in line for the
Presidency.63 Due to his concern about what would happen to the country in
the event of his removal or death, “Arthur prepared a secret proclamation
convening an immediate session of Congress to elect a President pro
tempore.”64
Fortunately, President Arthur was able to successfully discharge the
duties of his office and there were no further concerns regarding succession
during his term. However, concerns regarding presidential succession
reappeared early in the next administration when Grover Cleveland’s Vice
President, Thomas Hendricks, died in office.65 When Vice President
Hendricks died, once again there was neither a President pro tempore of the
Senate nor a Speaker of the House.66 As a result, President Cleveland did
not attend the funeral of his Vice President, for fear of “even the remote
chance of accident, incident to travel,” which could have thrown the
leadership of the country into doubt.67
The incidents faced by Presidents Garfield and Arthur, “together with
the risk of the opposition party to that of an elected President being in
control of Congress at the time of a presidential succession event,” led
Congress to pass a new presidential succession law in January 1886.68
Under the new statute, “[t]he Secretary of State was placed first in line
behind the Vice President, and he was followed by the other Cabinet
members in the order in which their departments had been established.”69
Under this succession plan, legislative leaders were removed from the line
of succession and replaced by members of the Cabinet.70 The reasons for
this change were twofold, as Congress believed that with “a cabinet line of
succession, there would be continuity of administration and policy, and no
question about their status as constitutional ‘officers.’”71
61
62
63
64
65
66
67
68
69
70
71
See id. at 385; see also PRESIDENTIAL SUCCESSION AND INABILITY, supra note 20, at 17.
YOUNG, supra note 23, at 386.
Id.
FEERICK, supra note 23, at 7.
YOUNG, supra note 23, at 386.
FEERICK, supra note 23, at 7.
Id.
Id.
YOUNG, supra note 23, at 386.
FEERICK, supra note 23, at 7.
Id.
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C. The Presidential Succession Act of 1947
The Succession Act of 1886 was still in force in 1945, when Harry
Truman assumed the Presidency upon the death of President Franklin
Delano Roosevelt.72 Soon after taking office, President Truman urged
Congress to change the succession law so that the Speaker of the House and
President pro tempore of the Senate would return to the line of succession.73
President Truman argued that he wanted these legislative officers in the line
of succession as they were elected to their offices by bodies, which are
representative of all the people.74 In his proposal, President Truman placed
the Speaker before the President pro tempore because, as a member of the
House, the Speaker is elected every two years, meaning that he is closer to
the people than the members of the Senate, who are elected every six
years.75 Another reason for this change was President Truman’s desire to
honor his old friend, Speaker Sam Rayburn.76
President Truman also proposed changes to the succession law due to
his belief that as an unelected President, with nearly a full term to serve, he
should not be able to name his own successor.77 Under the 1886 Act, the
Secretary of State was next in line of succession, a position that was within
the President’s own appointment authority.78 Further, President Truman was
dissatisfied with his Secretary of State, Edward R. Stettinius Jr., a former
steel executive who did not have a clear-cut political affiliation, nor had he
previously held elective office.79 President Truman forced Secretary
72
Harry S. Truman, WHITE HOUSE, http://www.whitehouse.gov/about/presidents/harrystruman
(last visited Oct. 5, 2012).
73
EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS 1787–1957, at 56 (1957).
74
PRESIDENTIAL SUCCESSION AND INABILITY, supra note 20, at 18; see also Eric A. Richardson, Of
Presumed Presidential Quality: Who Should Succeed to the Presidency When the President and VicePresident Are Gone?, 30 WAKE FOREST L. REV. 617, 634 (1995). While President Truman’s argument
for putting legislative officials into the line of succession might have reflected popular feelings in 1947,
modern popular sentiment has rejected this line of thinking. The clearest example of this rejection is the
passage of the Twenty-Fifth Amendment in 1967. The Amendment would not satisfy President
Truman’s democratic concerns, as it allows a president, with congressional approval, to appoint a vice
presidential successor.
75
U.S. CONST. art. I, § 3, cl. 1; FEERICK, supra note 1, at 43.
76
YOUNG, supra note 23, at 386.
77
ALLAN P. SINDLER, UNCHOSEN PRESIDENTS: THE VICE-PRESIDENT AND OTHER FRUSTRATIONS
OF PRESIDENTIAL SUCCESSION 20 (1976); see also YOUNG, supra note 23, at 386. Truman’s argument
about preventing a president from naming his own successor is weakened by the fact that almost every
presidential candidate selects his potential successor at the convention. Additionally, the President’s
ability to select a successor is not without restrictions, as the convention must accept the President’s
choice for Vice President and, if a vice presidential vacancy occurs during the President’s term, any
choice to fill the vacancy must receive the approval of Congress.
78
SINDLER, supra note 77, at 20.
79
FEERICK, supra note 1, at 43.
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333
Stettinius’s resignation and appointed James Byrnes.80 Under the 1886
Succession Act, had President Truman suddenly died, Secretary Byrnes, an
appointed official rather than an elected one, would have become President.
This outcome would have bothered President Truman.
It took two years for Congress to pass President Truman’s requested
Succession Act.81 In the interim, the Republicans gained control of both the
Senate and the House.82 Congress moved quickly to enact Truman’s
Succession Act and thereby put two Republicans first in line to succeed to
the Presidency, ahead of Secretary of State George Marshall.83 Despite
Truman’s backing, only three Democratic senators voted for the bill, which
nonetheless passed and was signed into law.84
The Succession Act of 1947, which is the current and controlling law
regarding presidential succession, provides: “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 . . . shall, upon his resignation as
Speaker and as Representative in Congress, act as President.”85
After the Speaker of the House, succession would then fall to the
President pro tempore of the Senate.86 After these two legislative officials,
succession would then fall to the members of the President’s Cabinet,
beginning with the Secretary of State.87
III. CONSTITUTIONALITY OF THE 1947 SUCCESSION ACT
A. Officers of the United States
The 1947 Act violates the Constitution’s Succession Clause, as the
Speaker of the House and President pro tempore of the Senate are not
“Officers” within the meaning of the Succession Clause.88 The Succession
Clause states as follows:
80
See id.; Byrnes, James Francis, (1882–1972), BIOGRAPHICAL DIRECTORY OF THE U.S.
CONGRESS, http://bioguide.congress.gov/scripts/biodisplay.pl?index=b001215 (last visited Oct. 5,
2012).
81
See Brown & Cinquegrana, supra note 20, at 1421–23.
82
Id. at 1423.
83
Id.
84
Id.
85
3 U.S.C. § 19(a) (2006).
86
Id. § 19(b).
87
FEERICK, supra note 1, at 46; see also Brown & Cinquegrana, supra note 20, at 1431–33 (“Each of these
officials must also satisfy the Constitution’s age and citizenship requirements for the Presidency. A Cabinet
member also must have been confirmed in that office by the Senate to be eligible.”).
88
Akhil Reed Amar, Applications and Implications of the Twenty-Fifth Amendment, 47 HOUS. L.
334
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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, and the Congress
may by Law provide for the Case of Removal, Death, Resignation or
Inability, both of the President and Vice President, declaring what Officer
shall then act as President, and such Officer shall act accordingly, until the
89
Disability be removed, or a President shall be elected.
While the Congress is granted wide discretion to designate a successor
to the President and Vice President, the Constitution specifically requires
that the named successor be an “Officer.”90 There is abundant historical
evidence that use of the term “Officer” in the Succession Clause was
shorthand for “Officer of the United States.”91 In fact, earlier drafts of the
Succession Clause used the longer designation.92 While a style committee
later deleted the words “of the United States,” there is no evidence that this
stylistic change was intended to alter the meaning of the word “Officer” in
the Succession Clause.93 Additionally, James Madison’s notes of the
Constitutional Convention record that the Framers understood that only
“Officers of the United States” would be eligible for succession.94 This is
significant, as members of the Legislative Branch are not “Officers of the
United States.”95
REV. 1, 30 (2010).
89
U.S. CONST. art. II, § 1, cl. 6.
90
Id.; see also Fortier & Ornstein, supra note 21, at 995 (“Congress is given the power to make a
law to specify the line of Presidential succession by statute. There are few restrictions on this power, but
these restrictions form the basis for constitutional objections to the inclusion of congressional leaders in
the line of succession.”).
91
Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?,
48 STAN. L. REV. 113, 116 (1995).
92
Id.
93
Id.
94
Id.; see also PRESIDENTIAL SUCCESSION AND INABILITY, supra note 20, at 18. (“The records of
the Constitutional Convention, and the language of the Constitution itself, cast strong doubt on whether
the Speaker and the President pro tempore are ‘officers’ eligible for succession to executive authority as
required in the Constitutional sense.”).
95
Amar & Amar, supra note 91, at 115 (“The Incompatibility Clause of Article I, Section 6 makes
clear that sitting members of Congress cannot hold ‘any Office under the United States.’ ‘Officers’ of or
under the United States thus means certain members of the executive and judicial branches, but not
legislators—the legacy of an earlier view sharply distinguishing the ‘people’s’ representatives in
Parliament from ‘crown’ officers in executive and judicial positions.”); see also Fortier & Ornstein,
supra note 21, at 995–96 (“While Congress, the states, and other institutions may have their own
officers, ‘Officers of the United States’ are federal executive branch figures.”); Wasserman, supra note
21, at 288 (“At its narrowest meaning, the unmodified ‘Officer’ could be shorthand for ‘Officers of the
United States’ or ‘Officers under the United States,’ synonymous terms which include executive branch
officers only. The Speaker of the House and President Pro Tempore of the Senate perhaps are legislative
officers, but they are not officers of or under the United States.”).
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In addition to this historical evidence, a textual analysis of the
Constitution also demonstrates that the provisions of the Constitution that
concern “Officers of the United States” are clearly inapplicable to members
of the Legislative Branch.96 First, the Commission Clause states that the
“[President] shall Commission all Officers of the United States.”97
Members of Congress have never required a commission from the President
to serve in the House or Senate.98 Second, the “Impeachment Clause” states
that “[t]he President, Vice President and all civil Officers of the United
States, shall be removed from Office on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors.”99 During
the impeachment case of Senator William Blount, the Senate explicitly
rejected the proposition that its members were “civil Officers.”100 Senator
Blount, as a member of the Senate, could be expelled, but he could not be
impeached.101
To counter these arguments, supporters of having legislative leaders in
the line of succession point to two provisions in Article I: “The House of
Representatives shall chuse [sic] their Speaker and other Officers . . . ,”102
and “[t]he Senate shall chuse [sic] their other Officers, and also a President
pro tempore. . . .”103 Supporters of legislative succession argue that the
Speaker is an officer of the legislature and thus fits within a broad
interpretation of the word “Officer” in the Succession Clause.104 The
problem with this reading is Article VI’s oath requirement, which states as
follows:
96
Amar & Amar, supra note 91, at 114–16; see also Wasserman, supra note 21, at 288 (“It thus is
at least textually arguable that [members of Congress] do not fall within the unmodified ‘Officers’ in the
Succession Clause. On this understanding, only executive branch officers are eligible to act as president
but no member of Congress is eligible to do so.”).
97
U.S. CONST. art. II, § 3.
98
Amar & Amar, supra note 91, at 115.
99
U.S. CONST. art. II, § 4.
100
Amar & Amar, supra note 91, at 115 (“As future Supreme Court Justice James Iredell had put
the point in constitutional ratification debates a decade earlier: ‘[W]ho ever heard of impeaching a
member of the legislature?’”).
101
This Day in History: The Impeachment of Senator Blount, HISTORY.COM,
http://www.history.com/this-day-in-history/the-impeachment-of-senator-blount (last visited Feb. 2,
2012); see also Blount, William, (1749–1800), BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=B000570 (last visited Oct. 5, 2012).
102
U.S. CONST. art. I, § 2.
103
U.S. CONST. art. I, § 3; see also Amar & Amar, supra note 91, at 116.
104
Amar & Amar, supra note 91, at 116–17; see also FEERICK, supra note 1, at 44 (noting that
Representative Estes Kefauver of Tennessee advanced this argument in the House during the debate
over the 1947 Act).
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The Senators and Representatives before mentioned, and the Members of
the several State Legislatures, and all executive and judicial Officers, both
of the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution; but no religious Test shall ever
be required as a Qualification to any Office or public Trust under the
105
United States.
First, while Article VI contains the unmodified word “Officers,” as seen
in the Succession Clause, Article VI also makes reference to state
officers.106 If the Succession Clause was interpreted as broadly as those who
advocate legislative succession desire, then Congress could determine that a
state government official was an officer for the purposes of presidential
succession.107 Such a result seems to be an unintended interpretation given
the Framers’ intent to create a strong federal government, the obvious state
favoritism such a succession rule would engender, and the existence of an
equally plausible reading of the term “Officer” explained above.108 Further,
Article VI reinforces the Constitution’s global legislator/officer distinction
by distinguishing between “Senators and Representatives” and “executive
and judicial Officers, both of the United States and of the several States.”109
In addition to these textual arguments, there is a structural argument
against legislative succession to the Presidency.110 The principle of
separation of powers would recommend against allowing the Congress to
select its leadership to lead a co-equal branch of government.111 This seems
apparent given the Framers’ decision to not create a parliamentary system
of government where Congress selects the President.112
Also, many notable members of Congress criticized the 1792 Act for
deeming legislators to be officers under the Constitution.113 Among these
105
U.S. CONST. art. VI.
Id.
107
Amar & Amar, supra note 91, at 117.
108
Id.
109
Id. at 116–17.
110
Fortier & Ornstein, supra note 21, at 996.
111
Id.
112
Id.
113
FEERICK, supra note 1, at 38 (“At the committee stage, a number of representatives expressed the
view that neither the President pro tempore nor the Speaker was an officer in the sense contemplated by
the Constitution. . . . Said Representative Hugh Williamson: ‘[T]his extensive construction of the
meaning of the word officer[] would render it proper to point out any person in the United States,
whether connected with the Government or not, as a proper person to fill the vacancy contemplated.’”);
see also PRESIDENTIAL SUCCESSION AND INABILITY, supra note 20, at 17 (“Congress passed a
succession law in 1792, pursuant to this section. There was considerable Congressional debate at that
time over whether the President pro tempore of the Senate and the Speaker of the House are
Constitutional ‘officers’ eligible for designation as Presidential successors under the terms of Article II,
Section 1.”).
106
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critics was the principal author of the Constitution, James Madison.114
Madison believed that the legislative leaders were not “officers in the
constitutional sense,” and that Congress erred by including them in the line
of succession.115 The criticisms of Madison and other founders were raised
successfully by members of Congress during the debate of the 1886 Act,
but regrettably failed to persuade the drafters of the 1947 Act.116
B. Legislative Bumping
A second constitutional issue concerning the 1947 Act is the “bumping”
provision. As explained above, if the President, Vice President, and
congressional leadership were killed, succession would fall to the
President’s Cabinet, starting with the Secretary of State.117 However, in this
circumstance, where the Presidency has fallen to a Cabinet officer, a newly
elected Speaker of the House or President pro tempore of the Senate could
replace him.118 This provision was added to the 1947 Act due to President
Truman’s belief that, in the line of succession, elected officials should have
priority over non-elected officials.119 Despite Truman’s good democratic
intentions, this provision has serious practical and constitutional issues.
114
America’s Founding Fathers: Delegates to the Constitutional Convention, CHARTERS OF
FREEDOM, http://www.archives.gov/exhibits/charters/constitution_founding_fathers_virginia.html#madi
son (last visited Oct. 5, 2012).
115
Amar & Amar, supra note 91, at 116; see also FEERICK, supra note 1, at 39 (“Shortly after the
law of 1792 was passed, James Madison expressed his opposition to it, in a letter to Edmund Pendleton,
the governor of Virginia. He questioned the constitutionality of placing the legislative officers in the line
of succession, stating: ‘It may be questioned whether [the President pro tempore and the Speaker] are
officers in the Constitutional sense. . . . If officers, whether both could be introduced. . . . As they are
created by the Constitution, they would probably have been there designated if contemplated for such
service, instead of being left to the legislative selection.’”).
116
FEERICK, supra note 1, at 40 (noting that during the effort to pass a 1886 succession law, “[i]t
was argued time and again during this period—particularly by Senators George F. Hoar of
Massachusetts, Samuel B. Maxey of Texas, James B. Beck of Kentucky, and Augustus H. Garland of
Massachusetts—that the President pro tempore and the Speaker were not officers of the United States
within the meaning of the succession provision”). “Representatives John W. Gwunne of Iowa, Charles
E. Hancock of New York, and Raymond S. Springer of Indiana reiterated the arguments of others from
past Congresses that the Speaker and President pro tempore were not officers within the meaning of the
succession clause.” Id. at 44.
117
FEERICK, supra note 1, at 46.
118
Fortier & Ornstein, supra note 21, at 1011; see also FEERICK, supra note 1, at 236 (“The socalled bumping provision—that is, whenever a Cabinet officer, in the absence of a Speaker or President
pro tempore, acts as President, he may be superseded by a subsequently elected Speaker or President pro
tempore—prompts yet another objection to the succession law.”); Amar & Amar, supra note 91, at 135
(“[A] Cabinet officer who assumes the Presidency after the Speaker and President pro tempore have
passed up their chance can later be ‘bumped’ out of the Oval Office if either legislator changes his mind
or is replaced by a new legislative leader.”).
119
Fortier & Ornstein, supra note 21, at 1011.
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First, this provision appears to be unconstitutional given the language
of the Succession Clause.120 According to the Succession Clause, the officer
selected by Congress shall act “until the Disability be removed, or a
President shall be elected.” Logic would dictate that the officer serve until
either of those two conditions is met.121 Not only did the Congress lack
constitutional authority to create such a provision, the presence of such a
provision is a direct contradiction of the language of the Succession
Clause.122 Additionally, not only was there no bumping provision in the
Acts of 1792 or 1886, but Senator Hoar, the author of the 1886 Act,
believed that such a provision would be unconstitutional.123
Setting aside the dubious constitutionality of bumping, there are several
practical issues that demonstrate why bumping is bad policy. First, when
this bumping procedure is employed it will result in the nation having three
presidents in a remarkably short period of time, with the effect of
exacerbating confusion at a moment of weakness for the government.124
Second, the 1947 Act does not state when a legislative leader would have to
bump a Cabinet member out of the Presidency.125 The result of this
ambiguity is that a Cabinet officer could serve as President while under the
continued threat of legislative succession, upending the separation of
powers between the executive and legislative branches.126
Third, in a disaster situation this bumping provision could produce a
leader who would enjoy limited legitimacy, as the following example shall
illustrate. During a Joint Session of Congress, a terrorist group detonates a
chemical weapon that kills the President, Vice President, congressional
leadership, and most of Congress. Under the 1947 Act, the Secretary of
120
U.S. CONST. art. II, § 1, cl. 6.
FEERICK, supra note 1, at 236; see also Amar & Amar, supra note 91, at 135–36 (“[Bumping]
also seems to violate the plain meaning of the Constitution.”).
122
I share the incredulity expressed by Professors Akhil and Vikram Amar in their thorough essay
regarding presidential succession. See Amar and Amar, supra note 91, at 135–36 (“By what logic, or
authority, can Congress instead declare that an Officer shall act as President until some other suitor
wants the job?”).
123
Amar & Amar, supra note 91, at 135 n.137 (“You never go back up the ladder after you have
gone down around.”); see also Ruth C. Silva, The Presidential Succession Act of 1947, 47 MICH. L.
REV. 451, 469 (1949).
124
Fortier & Ornstein, supra note 21, at 1011; see also Amar, supra note 88, at 27–28 (“But
bumping would only encourage political gamesmanship, weaken the presidency itself, and increase
instability at a moment when tranquility should be the nation's top priority.”).
125
Fortier & Ornstein, supra note 21, at 1011.
126
Id. This situation also adds dangerous levels of uncertainty in the context of presidential
disability. See Amar, supra note 88, at 28 (“If [the Speaker] thinks a disability will not last long—and,
again, if the Vice President is out of the picture—he can allow a Cabinet officer to act as President. If
the disability then worsens, the Speaker can, with a snap of his fingers, bump the Cabinet secretary out
of the Oval Office and put himself in.”).
121
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State, who was out of the country during the attack, would become
President.127 While the membership of Congress was decimated in the
attack, a handful of members of Congress remain, either from surviving the
attack or by not being in Washington when the attack occurred. It would
take some time for the Congress to fully reconstitute itself, a particularly
difficult task in the House, as the House can fill its vacancies only through
special elections.128
However, despite their small numbers, the survivors of the attack would
be able to exercise the powers of Congress. While the Constitution requires
that “a Majority of each [House] shall constitute a Quorum to do
Business,”129 the Constitution does not state how a quorum is to be
determined.130 Existing House precedents would allow the survivors of the
attack to exercise the full powers of the House, as historically the House has
defined a quorum as those “chosen, sworn, and living.”131 The survivors of
the House would then nominate a speaker to lead the House, who could
bump the Secretary of State and become President.132 Such a change would
lack the legitimacy offered by the former President’s Secretary of State and
throw an already weak government into further turmoil.
Due to the Political Question Doctrine, the Supreme Court will refuse
to address the question of what constitutes an “Officer” under the
Succession Clause or the issue of legislative bumping.133 If the United
States were ever to lose both her President and Vice President, it would be
critically essential that the succession law provide unquestioned
constitutional legitimacy to the President’s successor. Due to these two
constitutional issues, the 1947 Act fails to provide that certainty, urgently
mandating revision.
127
FEERICK, supra note 1, at 46.
Fortier & Ornstein, supra note 21, at 1012–13.
129
U.S. CONST. art. I, § 5, cl. 1.
130
Wasserman, supra note 21, at 300 (“The Constitution does not define how the quorum is
measured, whether by majority of authorized seats in a house or by majority of occupied seats, of living,
already-selected members of each body. In other words, must vacant seats count in the quorum
denominator?”).
131
Fortier & Ornstein, supra note 21, at 1013.
132
Id.; see also Wasserman, supra note 21, at 300–01 (“The skeletal post-attack Congress only can
function if the constitutional denominator is based on those 101 living House members, such that House
business, including the selection of a Speaker (who then may become acting president), can continue
when a majority of fifty-one members are present.”).
133
See Baker v. Carr, 369 U.S. 186, 217 (1962).
128
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IV. PRACTICAL ISSUES WITH THE SUCCESSION ACT OF 1947
A. Opposition Party Succession
In addition to these constitutional issues, there are serious practical
issues with the current succession law. When President Truman proposed a
new presidential succession law in 1945, one party often controlled both the
Presidency and the House; it is now common for the Presidency to be held
by a member of one party and the House by the other.134 This creates the
potential for a speaker of one party to assume and finish the term of office
of a president from a different political party.135 When the Succession Act
of 1947 was passed, House Republican Leader and Speaker Joseph Martin
of Massachusetts became next in the line of succession to Truman, who was
unable to appoint a Vice President.136 If anything had happened to President
Truman, Speaker Martin, an ardent opponent of President Truman’s Fair
Deal, would have succeeded him into office.137
The succession of a leader from an opposition party could “provoke an
abrupt and disorderly shift of leadership and direction at a time of serious
foreign and domestic difficulties.”138 Additionally, that opposition leader
would face questions regarding their legitimacy given how they assumed
the Presidency.139 Further, were an official from the opposition to become
President suddenly, it is likely that there would be an upheaval of executive
personnel.140 This would be due to that individual wanting to bring in loyal,
like-minded staff to carry out his directives and support his policies.141 As a
result, during a trying time, the Executive Branch would be further
weakened due to large wholesale changes in staff.
134
Joel K. Goldstein, Taking From the Twenty-Fifth Amendment: Lessons in Ensuring Presidential
Continuity, 79 FORDHAM L. REV. 959, 1028–29 (2010) (with the exception of Jimmy Carter, every President
since Nixon has had a period during their administration where the House was controlled by the opposition);
“Since 1969, the President and Speaker of the House have come from opposite parties [in] twenty-eight of the
forty-two years.” Id. at 1027.
135
Amar, supra note 88, at 29.
136
YOUNG, supra note 23, at 386.
137
Id.
138
Id. at 388; see also John D. Feerick, Presidential Succession and Inability: Before and After the
Twenty-Fifth Amendment, 79 FORDHAM L. REV. 907, 947 (2010) (“A quick shift in party control in the
event of a double vacancy will not provide the necessary stability in what would, in all likelihood, be a
time of crisis, if not trauma”).
139
Joel K. Goldstein, Akhil Reed Amar and Presidential Continuity, 47 HOUS. L. REV. 67,
94 (2010); see also Goldstein, supra note 134, at 1028 (“Some would question the legitimacy of such a
turnover of party control, which, in contemporary times, would produce a dramatic change in the
ideological orientation as well as partisan composition of the executive branch.”).
140
Goldstein, supra note 134, at 1028; see also Goldstein, supra note 139, at 94.
141
Goldstein, supra note 134, at 1028–29.
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One major problem with legislative succession “is the lack of a
guarantee that the congressional leadership will be of the same political
party or will even hold similar beliefs about governing as the elected
administration.”142 While there is no guarantee that a non-legislative
successor would be of the same political party of the President, those
individuals who are in the President’s Cabinet are more likely to share the
President’s political affiliation or views on governance than elected
officials.143
In an interview with CBS News in 1964, President Eisenhower spoke
about the potential for a president to be succeeded by a member of
Congress who was not of the President’s party. Eisenhower said:
[I]f you have a line of succession which, right after the Vice-President,
brings in two of the legislative group, you can have a very, very bad
situation arise . . . in a period of crisis. For six years of my administration,
of course, I had a Congress that was controlled by the Democrats, so right
behind Mr. Nixon in the line of succession stood, under the present law,
Mr. Rayburn, the Speaker of the House. . . . [M]y immediate predecessor
. . . had . . . the same experience I did in reverse. He had Mr. Martin. . . .
[W]hen there was no Vice-President, you would have had different parties
taking over suddenly . . . [in] the Executive department. . . . You can’t
change it overnight and get it working effectively. I believe that if the
electorate says that such-and-such a party should have the White House
144
for four years, it ought to have the White House for four years.
President Eisenhower’s concerns about succession problems are wellfounded. In a crisis situation, which is possible in an event in which
presidential succession comes in to play, it would be difficult for a
lawmaker to come in and direct the Executive Branch. It would be easier for
Cabinet members like the Secretaries of State or Defense to be in charge of
the Executive Branch due to their familiarity with the other members of the
Cabinet and the likelihood that they would be part of the President’s party
and ready to carry out policies consistent with those of the previous
administration.
142
Richardson, supra note 74, at 643.
Id.; see also Feerick, supra note 138, at 946 (“Appointed Cabinet members are more likely to see
eye to eye with the President on issues of national policy, and therefore Cabinet succession will better
maintain policy continuity should an emergency arise creating the need for succession beyond the Vice
President.”).
144
JOHN D. FEERICK, FROM FALLING HANDS: THE STORY OF PRESIDENTIAL SUCCESSION 265
(1965).
143
342
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Finally, there is a chance that a foreign enemy or domestic partisan
might try to assassinate the President and Vice President to change the party
in control of the White House and alter U.S. policies.145 This potential
problem could be avoided through Executive Branch succession, which
would be less likely to produce a change in party or philosophy.146
B. Issues with the Speaker of the House
Beyond the potential issues involved when a Speaker who assumes the
Presidency is of a different party than the previous President, there are
additional issues with the Speaker being second in the line of succession.
President Truman, in a special message to Congress in which he advocated
that Congress put elected officials into the line of succession, said that “the
Speaker is the official in the Federal Government, whose election next to
that of the President and Vice-President, can be most accurately said to
stem from the people themselves.”147 While the Speaker may be chosen by
the majority of the members of his party in the House, he or she is only
elected from one of 435 congressional districts.148 The Speaker is no more
representative than the Majority Leader of the Senate, who can at least be
said to represent the interests of an entire state rather than just a single
district. Further, the Speaker is almost always selected from a sure district,
which is required to allow an individual to win reelection repeatedly to gain
the seniority necessary to become Speaker, and these districts are less likely
to produce superior people than a close district.149
Additionally, the demands of serving as Speaker of the House do not
permit that officeholder to observe and participate in day-to-day
presidential activities, unlike leading Cabinet members.150 In addition to
performing the duties of a normal member of Congress, the Speaker
functions as the political leader of the majority party in the House and
presides over a 435-member legislative body.151 The responsible exercise
145
Fortier & Ornstein, supra note 21, at 999.
Id.
147
President Harry S. Truman, Special Message to the Congress on the Succession to the Presidency
(June 19, 1945), available at http://www.presidency.ucsb.edu/ws/index.php?pid=12201&st=
&st1=.
148
CORWIN, supra note 73, at 56–57.
149
See id.; see also YOUNG, supra note 23, at 387. Speaker John W. McCormack was first in the
line of succession after President Lyndon Johnson following the assassination of President John F.
Kennedy. While “he had held positions of leadership among House Democrats for more than twenty
years before being elected Speaker in 1962 . . . he was not regarded as conspicuously qualified to be
President.” Id.
150
PRESIDENTIAL SUCCESSION AND INABILITY, supra note 20, at 18–19.
151
Id.
146
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343
of these heavy responsibilities requires the officeholder’s undivided
attention.152
Further, when the Speaker is of a different party from the President, it is
unlikely that the Speaker has had a desirable level of preparation on the
policies and plans of the administration.153 It is hard to imagine that any
presidential administration would brief the leader of the opposition in
Congress on critical and sensitive policy matters.154 Even if the Speaker is
of the same party as the President, they are not part of the President’s
administration and therefore would be privy to far less intimate details of
the President’s policies than administration officials.155 The individuals best
prepared to carry out the plans of the administration are the Cabinet
officials who are best prepared for a sudden elevation to the Presidency.156
Finally, a comparison of the caliber of past speakers has often demonstrated
a quality below what the Presidency requires and deserves, and when
compared to past secretaries of state, the result overwhelmingly favors the
secretaries.157
C. Issues with the President Pro Tempore of the Senate
If the Speaker were unable to assume the office, the President pro
tempore would be next in the line of succession. The potential problem here
is that the President pro tempore is an honorific office normally given to the
longest serving member of the party that holds the majority of the Senate.158
This person is normally very old—the current President Pro tempore is
Patrick Leahy, who is seventy-one years old.159
This position is selected without any thought of the Senator’s ability to
discharge the duties of the Presidency. Of the last ten men to serve as
President pro tempore, only two ever ran for President: Richard Russell, Jr.,
sixteen years prior to his first becoming President pro tempore, and Strom
Thurmond, thirty-two years before his becoming President pro tempore.160
152
Id.
Goldstein, supra note 134, at 1029.
154
Id.
155
Fortier & Ornstein, supra note 21, at 999–1000.
156
Id. at 1000.
157
CORWIN, supra note 73, at 56–57.
158
Gerald Gamm & Steven S. Smith, Last Among Equals: Senate’s Presiding Officer, in ESTEEMED
COLLEAGUES 105, 108 (Burdett A. Loomis ed., 2000); Carl Hulse, Inouye Sworn in as President Pro
Tem, N.Y. TIMES CAUCUS BLOG (June 28, 2010, 1:00 PM), http://thecaucus.blogs.nytimes.com/2010/06
/28/inouye-sworn-in-as-president-pro-tem/; see also Goldstein, supra note 139, at 94.
159
Leahy, Patrick Joseph, (1940–), BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=L000174 (last visited Dec. 21, 2012).
160
Goldstein, supra note 134, at 1030.
153
344
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Further, none of these senators ever had a chance to win their party’s
nomination for President while serving as President pro tempore.161
Additionally, seven of the ten men held this office while in their eighties or
older.162 These men often experienced significant health problems given
their advanced age.163 Finally, Senator Leahy’s immediate predecessors as
President pro tempore, Senators Daniel Inouye, Robert Byrd, Ted Stevens,
and Thurmond, died in or shortly after leaving office.164
As a result of how the President pro tempore of the Senate is chosen,
the potential exists for an individual to assume the Presidency in his late
eighties or nineties, where there would be reasonable questions about that
individual’s ability to carry out the requirements of the office.165
D. Incapacitation and Succession
An additional issue with legislative succession arises in situations
where the President is incapacitated and the Vice President is absent or
unable to serve. Under the principle of separation of powers and the
requirements of the 1947 Act, the Speaker of the House or the President pro
tempore would have to resign to act as President even for a short period of
time.166 When the President recovered from his short absence, the
legislative official would be unable to return to Congress during that term
and would be required to run again for office.167 This issue could be
avoided by employing a succession plan that relies exclusively on
Executive Branch officials. While the Presidential Succession Act requires
161
Id.
Id.
163
Id.
164
Byrd, Robert Carlyle, (1917–2010), BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=B001210 (last visited Oct. 6, 2012); Inouye,
Daniel
Ken,
(1924–2012),
BIOGRAPHICAL
DIRECTORY
OF
THE
U.S.
CONGRESS,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=I000025 (last visited Dec. 21, 2012); Ted Stevens
Biography, supra note 35; Thurmond, James Strom, (1902–2003), BIOGRAPHICAL DICTIONARY OF THE
U.S. CONGRESS, http://bioguide.congress.gov/scripts/biodisplay.pl?index=T000254 (last visited July 25,
2012) [hereinafter Strom Thurmond Biography].
165
Goldstein, supra note 139, at 94 (“Had Senator Jim Jeffords not left the Republican Party in June
2001, Thurmond would have been third in line of succession on September 11, 2001, when al-Qaeda
tried to decapitate the American government.”); see also Strom Thurmond Biography, supra note 164
(Thurmond was ninety-eight years old when the September 11th attacks occurred).
166
Amar, supra note 88, at 27–28; see also PRESIDENTIAL SUCCESSION AND INABILITY, supra note
20, at 18 (noting that “the requirement that the Speaker—or the President pro tempore—must resign his
Congressional position before acting as President would force him to sacrifice a long legislative career
even for the briefest Presidential tour of duty”). There is also doubt as to whether the President, disabled
or not, would be willing to transfer power to a Speaker from the opposition. See generally FEERICK,
supra note 1, at 234–35.
167
Fortier & Ornstein, supra note 21, at 1003–04; see also Amar, supra note 88, at 27–28.
162
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a member of the Cabinet to resign their office in order to act as President,
the President after recovering from his illness could reappoint that
official.168
The issues associated with presidential disability and legislative
succession are even more acute in the situation where the President suffers
from a recurring disability and there is no Vice President. When the
disability first occurs, the Speaker would resign his position in Congress to
act as President.169 The President would then recover from his illness,
displacing the Speaker who resigned to act in his place.170 If the illness were
to reoccur, then the new Speaker, who had been selected in the interim,
would be eligible to act as President and would likely resign his office to do
so.171 The President could then recover, resume his office, and for the
second time in a short period displace the caretaker Speaker.172 This system
is likely to induce instability in the leadership of the White House and the
House of Representatives.173 Under a succession system that only featured
executive officials, this problem would not be as severe. The Secretary of
State could act as President when the disability occurred and once the
President recovered from his disability, he could move to have the Senate
quickly confirm his reappointment of the Secretary.174 This would allow the
Secretary to once again serve as Acting President if the disability were to
reoccur, without affecting the leadership of the Legislative Branch. Even if
the Senate were unable to act fast enough to reconfirm the Secretary of
State prior to the President’s second disability, the Acting President would
then be the next Executive Branch official in the line of succession. This
outcome would still be preferable to the current model, as it results in no
changes to the leadership of congress.
E. Impeachment and Succession
Legislative succession as is currently provided for in the 1947
Succession Act creates the perverse situation where the leadership of
Congress could assume the Presidency through an impeachment process
that they instigated and led.175 In 1865, Vice President Andrew Johnson
168
However, the reappointment would require the advice and consent of the Senate. See Fortier & Ornstein,
supra note 21, at 1004–05.
169
Id. at 1005–06.
170
Id. at 1006.
171
Id.
172
Id.
173
See id.
174
Id.
175
Amar, supra note 88, at 28.
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assumed the Presidency upon the death of President Abraham Lincoln.176
One obvious result of Vice President Johnson assuming the Presidency after
President Lincoln’s assassination was that there was no Vice President.177
At the time, no provision of the Constitution permitted a vice presidential
vacancy to be filled by presidential nomination and congressional
confirmation; this issue would only be addressed by the passage of the
Twenty-Fifth Amendment to the United States Constitution in 1967.178
The lack of a Vice President was significant given that President
Johnson was nearly forced out of his office by the Radical Republicans in
Congress.179 The Republicans came within one vote of impeaching the
President.180 In such a circumstance, “the Senate could have elevated its
own presiding officer to the Presidency by convicting the incumbent
President.”181 Senator William M. Evarts argued that this type of
succession, where the Senate could convict the President and replace him
with one of its own members, was not contemplated by the Constitution.182
President pro tempore Benjamin Wade was criticized by many of his
colleges for his participation in President Johnson’s trial.183 Wade was
hardly a neutral observer, voting for the President’s conviction while at the
same time selecting officials to serve in his Cabinet.184 After surviving his
impeachment trial, President Johnson recommended that the Congress alter
the line of succession to remove the President pro tempore and Speaker, as
“the legislative officers had a stake in removing the President by resort to
the impeachment process.”185
Under the Presidential Succession Act of 1947, politically motivated
impeachments are once again a possibility.186 During the Nixon
Administration, Speaker Carl Albert was first in the line of succession after
the resignation of Vice President Spiro T. Agnew.187 With the Watergate
scandal unfolding, Speaker Albert became alarmed that he would be forced
176
Lincoln, Abraham, (1809–1865), BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=L000313 (last visited Oct. 14, 2012); see also
Johnson, Andrew, (1808–1875), BIOGRAPHICAL DIRECTORY OF THE U.S. CONGRESS,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=J000116 (last visited Oct. 14, 2012).
177
Amar, supra note 88, at 28.
178
U.S. CONST. amend. XXV, § 2.
179
Chafetz, supra note 23, at 409.
180
Id.
181
PRESIDENTIAL SUCCESSION AND INABILITY, supra note 20, at 17.
182
FEERICK, supra note 1, at 41.
183
THE GREAT IMPEACHMENT AND TRIAL OF ANDREW JOHNSON 23 (1868).
184
See Amar, supra note 88, at 28 (“Even as Wade sat in supposedly impartial judgment over
Johnson, he had already begun making plans to move into the White House.”).
185
FEERICK, supra note 1, at 40.
186
Amar, supra note 88, at 28.
187
FEERICK, supra note 1, at 47.
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into the Presidency.188 Had President Nixon been impeached and convicted
or resigned prior to appointing Gerald Ford as Vice President, Speaker
Albert would have become President, shifting control of the Presidency to a
different political party.189
A group of Democratic members of Congress were interested in this
outcome and urged Speaker Albert to hold up Ford’s nomination so that
Congress could remove Nixon and elevate Albert to the Presidency.190
However, Speaker Albert was not interested in this potential outcome and
allegedly said of the possibility of his succeeding: “Lord help me. I pray
every night it doesn’t happen.”191
As the example of President pro tempore Wade demonstrates, not all
politicians are as reluctant as Speaker Albert to try to seize power whatever
the circumstances. The current succession law presents a potential danger
that could be exploited by an unscrupulous leader.
V. PROPOSED SOLUTION: PRESIDENTIAL SUCCESSION ACT OF 2013
Given these constitutional and practical concerns with the Succession
Act of 1947, it is necessary for Congress to act and to create a new
succession regime, the Presidential Succession Act of 2013. A series of
changes are necessary to strengthen the succession process.
First, Congress should eliminate the Speaker of the House and the
President pro tempore of the Senate from the line of succession. The
reasons enumerated above demonstrate the difficulties posed by having
members of Congress in the line of succession. Under the Succession Act of
2013, in the situation where the President and Vice President are unable to
discharge their duties, succession would fall to the Cabinet. One advantage
of a Cabinet line of succession is that the constitutional issues with the 1947
Act would be eliminated.192 Additionally, unlike members of the Legislative
Branch, the members of the Cabinet are personally selected by the President
188
Id.
Id.
190
Fortier & Ornstein, supra note 21, at 1002 (“The seriousness of the effort is evidenced by the fact
that Ted Sorensen, former aide to Presidents John F. Kennedy and Lyndon B. Johnson, was tasked to
write memos planning for the transition into office of an Albert administration.”).
191
FEERICK, supra note 1, at 47.
192
Id. at 236 (“Of course, if there were a Cabinet line of succession, the major legal problems raised
by the current succession law would be eliminated. There is no doubt that Cabinet officers are officers of
the United States, and if they retain their offices while acting as President, there would be no violation of
the principle of separation of powers.”); Brown & Cinquegrana, supra note 20, at 1440–41 (“While the
risk of removal by the congressional officers is a real and continuing one, a Cabinet officer who
becomes Acting President generally may not be supplanted in that role by another Cabinet officer, even
if the latter ranks higher on the succession roster established in section 19.”).
189
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to carry out his policies.193 This personal selection increases the likelihood
that Cabinet succession will produce continuity of administration and
policy.194
Also, with regard to the issue of legitimacy, a Cabinet official also has
an edge on the legislative leaders. While it is true that the Speaker and
President pro tempore are selected as leaders by their respective bodies that
represent the nation, a Cabinet official is appointed by the President and
confirmed by the Senate.195 As a result, a member of the Cabinet can claim
selection by two continental institutions, the Senate and the Presidency.196
Further, unlike a member of the legislature, a Cabinet member can claim
apostolic succession from the President whose term ended prematurely.197
Finally, while members of the Cabinet are almost always in the prime of
their lives, the Speaker and President pro tempore are more likely to be old,
raising questions about their abilities to discharge the duties of the
Presidency.198
Second, the order of Cabinet succession needs to be altered to
emphasize executive departments critical to the administration of
government. Under the current succession plan, the Secretary of State is the
first Cabinet officer in the line of succession.199 This is proper given the
responsibilities, prominence, and prestige of the Secretary of State.200
Additionally, while the Secretary of State is only an expert in foreign
193
YOUNG, supra note 23, at 387; see also Richardson, supra note 74, at 642 (“Cabinet officials and
Vice Presidents are handpicked by the President and tend to have significant political party allegiance.”).
194
FEERICK, supra note 1, at 41–42.
195
Amar & Amar, supra note 91, at 130–31; see also Richardson, supra note 74, at 642 (“Cabinet
officials are selected after the President is elected and are legitimized by Senate confirmation. In fact,
the procedure used to select a Cabinet official is very close to the procedure employed to select a vice
presidential successor under the Twenty-fifth Amendment.”).
196
Amar & Amar, supra note 91, at 131.
197
Id.
198
YOUNG, supra note 23, at 387.
199
FEERICK, supra note 1, at 46; see also Brown & Cinquegrana, supra note 20, at 1432 (“Each of
these officials must also satisfy the Constitution’s age and citizenship requirements for the Presidency.
A Cabinet member also must have been confirmed in that office by the Senate to be eligible.”).
200
RICHARD F. FENNO, JR., THE PRESIDENT’S CABINET: AN ANALYSIS IN THE PERIOD FROM
WILSON TO EISENHOWER 162 (1959); see also HENRY BARRETT LEARNED, THE PRESIDENT’S CABINET:
STUDIES IN THE ORIGIN, FORMATION, AND STRUCTURE OF AN AMERICAN INSTITUTION 144 (1912) (“In
our executive departments[,] . . . two have been considered as requiring talent and genius. Of these,
practice has given the precedence to the department of state.” (quoting Judge Woodward)); YOUNG,
supra note 23, at 388 (“Historically the Secretaries of State have surpassed the Speakers of the House in
stature, as measured by their frequency of mention for the Presidency. Six Secretaries of State were
elected President, five others received Presidential nominations, and seven others were strong
contenders for Presidential nominations. Only one Speaker, James K. Polk, later became President, and
only two others—Clay and Blaine, who were also Secretaries of State—won Presidential nominations.
Even Sam Rayburn, perhaps the greatest Speaker of them all, did not clearly surpass in ability most of
the able Secretaries of State who served during his years as Speaker.”).
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affairs, this is the area that would require the most attention in the situation
of presidential death or disability.201 The foreign experience of the Secretary
of State will allow our friends and enemies to understand what to expect
during this period of crisis.202
While it is likely that most incidents involving presidential succession
or inability would not require succession beyond the Secretary of State, the
potential for a disaster scenario that results in the deaths of the President,
Vice President, and Secretary of State requires planning for this
contingency. The 1947 Act is flawed in that it orders Cabinet succession by
the year the Secretary’s Department was created, rather than by the
officeholder’s ability to discharge the office of the President. The current
Cabinet succession order is as follows: State, Treasury, Defense, Justice,
Interior, Agriculture, Commerce, Labor, Health and Human Services,
Housing and Urban Development, Transportation, Energy, Education,
Veterans Affairs, and Homeland Security.203
While it is impossible to know for certain which of these Cabinet
officers would be best suited to exercise the duties of the Presidency, the
best indicator of their ability to do so is their responsibilities as a Cabinet
officer. In an emergency that leads to a lower-ranked Cabinet official being
required to discharge the duties of the Presidency, it would be in the best
interest of the United States to have an official with a background in a vital
area of government operations.
In any government, the following offices are of vital importance to the
administration of the state: foreign affairs, defense, finance, and internal
security and justice. These positions are represented at the top of the current
succession order, with the exception of internal security; the Secretary of
the Department of Homeland Security is last in the Cabinet line of
succession. This makes little sense given the importance of the Department
and the valuable experience the leader of the Department would bring to the
Presidency during a crisis situation. Therefore, the Secretary of the
Department of Homeland Security should be fifth in the Cabinet line of
succession, after the representatives from State, Treasury, Defense, and
Justice.
After the Secretary of the Department of Homeland Security would be
the Secretary of a new department, the Department of Emergency
Preparation and Presidential Transition. One flaw of the current Succession
Act is that all potential successors primarily live and work in Washington.
201
202
203
YOUNG, supra note 23, at 388.
Id.
Brown & Cinquegrana, supra note 20, at 1431.
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An attack on that city with biological, chemical, or nuclear weapons could
result in the deaths of every individual in the current line of succession. The
advantage of a Department of Emergency Preparation and Presidential
Transition would be to place an official in the line of succession that lives
and works outside of Washington.204
Under the Succession Act of 2013, the President would select an
individual to serve as the Secretary of this new Department. The President
would be free to select any individual to fill this vacancy, so long as they
are able to meet the Constitution’s age and citizenship requirements for the
Presidency. The ideal candidates for such a position would be former senior
statesmen, such as high-ranking former Cabinet officials (e.g., Powell,
Baker, Gates, Ridge, Summers), or prominent current state leaders of the
President’s party (e.g., the governors of California, Illinois, or New York).
By serving as the Secretary of the Department of Emergency Preparation
and Presidential Transition, the Secretary would be an Officer of the United
States, and thus be eligible to be included in the new Succession Act.
Professors Joel K. Goldstein and James E. Flemming, as well as the
Continuity of Government Commission, have also discussed the potential
of creating new “officers” for succession purposes.205 However, I disagree
with Professors Goldstein and Flemming and the Commission over where
these officers should be placed in the order of succession. Professor
Goldstein and the Commission would place these officers after the
members of the Cabinet in the line of succession, while Professor
Flemming would place them before the Cabinet.206 The proper place for
these officers is after the Secretary of the Department of Homeland
Security, but before the remaining Cabinet officers. The reasoning for this
placement is that while the Secretary of the Department of Emergency
Preparation and Presidential Transition will be well-briefed, their day-today knowledge of administration activities and policies would be second to
that of senior Cabinet leaders, such as the Secretaries of State or Defense.
However, the Secretary of the Department of Emergency Preparation
and Presidential Transition should be placed ahead of the remaining
Cabinet members. The remaining Cabinet officials are often selected for
204
As to the location of the new department, while any secure federal facility outside of Washington
would suffice, I recommend that the Congress choose one of two existing U.S. Air Force bases to house
the Department: Peterson Air Force Base (location of the North American Aerospace Defense
Command), or Offutt Air Force Base (location of the United States Strategic Command—Successor to
the Strategic Air Command). The advantage of these facilities is that they exist in relatively remote
locations with reinforced bunkers and elaborate communications systems.
205
James E. Fleming, Presidential Succession: The Art of the Possible, 79 FORDHAM L. REV. 951,
957 (2010).
206
Id.
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their positions due to political patronage or expertise in their particular field
without thought of their ability to succeed the President.
After the Department of Emergency Preparation and Presidential
Transition, I would reorder the remaining Cabinet as follows: Health and
Human Services, Energy, Transportation, Agriculture, Commerce, Labor,
Interior, Veterans Affairs, Education, and Housing and Urban
Development. This reordering is due to the practical experience in
providing essential services a leader from one of these departments would
have in the event of a national emergency.
CONCLUSION
Given these concerns it is reasonable for the Congress to overhaul the
law regarding the line of succession. By implementing the Succession Act
of 2013, the Congress will strengthen the plan for presidential succession,
while removing the constitutional questions posed by the current
Succession Act.