The United States
Constitution And Democracy
Presidential Succession, is a term that describes the arrangements under which presidential authority in the United States may be transferred other than by means of the quadrennial presidential
Election. Specifically, it embraces those procedures that apply to cases involving the death, resignation, removal, or inability of a
President, and the death or failure to qualify of a president-elect or vice president-elect. These procedures are defined in three parts of the U. S.
Constitution--Article II, Section 1, Clause 6; the 20th Amendment; and the 25th Amendment--and in the presidential-succession law passed by Congress in 1947.
The importance of a system of presidential succession has been demonstrated repeatedly throughout American history, but especially in the 20th century. Between 1901 and 1974, five vice presidents became president as a result of four presidential deaths and one resignation. In the 19th century four other vice presidents became president after a president's death. Between 1841 and 1975, more than one third of the presidents either died in office, resigned, or became disabled.
Of the elected vice presidents, seven have died in office and two have resigned. Altogether, the second office has been vacant for more than 37 years.
Article II, Section 1, Clause 6 of the Constitution, as supplemented by Section 1 of the 25th Amendment, provides that the vice president becomes president in the event of the death, resignation, or removal of the president. When any of these contingencies occurs, the vice president takes the presidential oath and serves as president for the rest of the term. Section 2 of the 25th Amendment prescribes a procedure for filling a vice-presidential vacancy.
The president nominates a vice president, who must be confirmed by a majority vote of each House of
Congress. Sections 3 and 4 of the 25th Amendment deal with a case in which some condition or circumstance, such as a physical or mental inability, prevents the president from discharging his powers and duties.
These sections make clear that in a case of inability, the vice president simply discharges the powers and duties of president until the president recovers from the inability. Section 3 allows the president to declare the beginning and ending of his own inability. Section 4, covering the case in which the president is unable to make or communicate a decision of inability, authorizes the vice president and a majority of the cabinet "or of such other body as Congress may by law provide" to declare the existence of such an inability.
When an inability is declared under Section 4, the president is prevented from resuming his powers and duties for a period of four days from the time he declares the end of such an inability. If during the four-day period the vice president and cabinet should dispute the president's declaration of recovery, the Congress must then decide the issue. It has a maximum of 21 days to do so, and a two-thirds vote of each house is required to prevent the president from resuming his powers and duties. During the period Congress has to decide, the vice president continues to act as president.
Article II, Section 1, Clause 6 also authorizes Congress to establish a line of succession to the presidency in the event of simultaneous vacancies in the offices of president and vice president. Pursuant to this provision, Congress adopted a law in 1947 that places the following persons in the line of succession after the vice president: first the Speaker of the House, then the president pro tempore of the Senate, and then the members of the cabinet in the order in which their departments were created.
The 20th Amendment provides for other contingencies. In the event of the death of a president-elect, it provides that the vice president-elect shall become president for the full term. If a president-elect fails to qualify--for example, by falling short of residency or age requirements--then the vice president-elect acts as president until the president qualifies. The amendment further authorizes Congress to provide for the death or failure to qualify of both the president-elect and vice president-elect, which Congress has done in the succession law of 1947.
Before the adoption of the 25th Amendment in 1967, the cornerstone of the U. S. presidential succession system was found in Article II, Section 1, Clause 6, which provides: "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 Disability be removed, or a President shall be elected."
Beginning with the death of President William Henry HARRISON in 1841, and continuing through the death of President John F. KENNEDY
in 1963, this provision was interpreted, whenever a president died in office, as making the vice president the new president for the remainder of the term. Although there is evidence indicating that the framers of the Constitution simply intended the vice president to be an acting president, Vice President John TYLER
's assumption of the office and title of president upon Harrison's death became the accepted practice in all subsequent cases of presidential deaths.
The precedent established by Tyler, however, proved a formidable obstacle to a vice president's acting as president during the 80-day period President James GARFIELD
hovered between life and death in 1881 as a result of an assassin's bullet; during the more than one year that President Woodrow WILSON
lay ill as a result of a stroke; and on the three occasions when President Dwight EISENHOWER
was prevented by illness from fully exercising his powers and duties.
Because Article II did not distinguish cases of death from those of inability, it was feared during these periods that any succession by a vice president would make him president, as in the case of death, for the rest of the term even if the elected president recovered from his inability before his term ended. Hence, there was little disposition during these periods to turn over the reins of government to the vice president. In addition to the obstacle of the Tyler precedent, there also existed no procedures for determining the beginning and ending of a president's inability.
In 1958, President Eisenhower adopted a plan to cover future cases of inability in his administration under which he would declare his own disability, if that seemed advisable, and permit Vice President Richard NIXON
to become acting president until Eisenhower declared the end of his disability. If Eisenhower could not communicate with Nixon, the latter could declare him disabled. Presidents Kennedy and JOHNSON
adopted similar plans with their potential successors, but these informal arrangements could not serve as a permanent solution to the problem.
President Kennedy's death focused attention on gaps in the system and led to the adoption of the 25th Amendment. Section 1 of that amendment confirms the Tyler precedent and extends it to cases of resignation and removal. By removing the "inability" contingency to Sections 3 and 4 and specifically providing for an acting president, the amendment eliminates the obstacle that confronted Vice Presidents Chester Alan ARTHUR
, Thomas MARSHALL , and Nixon during the inabilities of their presidents, and now makes it possible for the vice president to exercise presidential leadership if a president is disabled.
Between 1792 and 1947, Congress adopted three different succession statutes to deal with the contingency of dual vacancies in the offices of president and vice president. The law of 1792 placed the president pro tempore and the Speaker in the line of succession; the 1886 law removed them and placed the members of the cabinet in the line; and the 1947 law combined both groups.
Because of the growing importance of the vice presidency and a lack of enthusiasm for the 1947 succession statute, a national consensus developed after President Kennedy's assassination in favor of a procedure for filling the vice presidency whenever a vacancy occurred, thereby minimizing the possibility of the statutory line being reached. That procedure, involving nomination by the president and confirmation by both houses of Congress, was placed in Section 2 of the 25th Amendment. When Vice President Spiro AGNEW
resigned in October 1973, the procedure was used to install Gerald R. FORD
as the vice president. When Ford assumed the presidency on President Nixon's resignation in August 1974, it was used again to install Nelson ROCKEFELLER
as the vice president.
Proposals for Change
The resignations of Nixon and Agnew gave rise to proposals for further changes in the system of presidential succession. They range from abolition of the vice presidency to modification of the 25th Amendment to provide for a presidential election whenever a vice president succeeds to the presidency. These proposals are designed to minimize the time a person not actually elected to the presidency could occupy that office. They are objected to on the ground that they would change important principles--stability and continuity--that have operated throughout the history of American presidential succession.
John D. Feerick
Member of the New York Bar
For Further Reading
Crispell, K. R., and C. F. Gomez, Hidden Illness in the White House (Duke Univ. Press 1988);
Feerick, John D., The Twenty-fifth Amendment (Fordham Univ. Press 1975);
Glennon, Michael J., When No Majority Rules: The Electoral College and Presidential Succession,Congressional Quarterly (Dec. 1992);
Thompson, K. W., ed., Papers on Presidential Disability and the Twenty-fifth Amendment (Univ. Press of Am. 1988).