Presidential Succession Act
Encyclopedia
The Presidential Succession Act establishes the line of succession
to the powers and duties of the office of President of the United States
in the event that neither a President nor Vice President
is able to "discharge the powers and duties of the office." The current Presidential Succession Act was adopted in 1947 and is codified at .
Congressional authority to enact such a law is twofold: Article II, Section 1, Clause 6 of the United States Constitution
and Section 3 of the Twentieth Amendment to the Constitution
.
was next in line of succession after the Vice President, followed by the Speaker of the House of Representatives.
If this happened, section 10 required there to be a presidential election in December of the year in which section 9 was invoked (or in December of the next year, if there was less than two months to go until December and the presidential term was not about to expire).
died, resigned or been removed from office during those times, the President pro tempore of the Senate
would have become the Acting President
:
The act twice came very close to being implemented. In 1844, President Tyler narrowly missed being killed (along with Secretary of State
Abel P. Upshur
and Secretary of the Navy
Thomas Walker Gilmer
) by the explosion of a bow gun on board the U.S.S. Princeton
; had this occurred, President pro tempore Willie Person Mangum
would have become Acting President. In 1868, after President Andrew Johnson
was impeached
by the House of Representatives
, the Senate came one vote short of removing him from office; if Johnson had been removed, President pro tempore Benjamin Wade
would have become Acting President.
in the previous year, a new Presidential Succession Act was adopted, replacing the President pro tempore of the Senate and the Speaker of the House on the list with the members of the Cabinet
. The order of succession was determined by the order in which each cabinet department had been created - with the Secretary of State
being first in line after the Vice President. As six former Secretaries of State
had gone on to be elected President in their own right and as only one Congressional leader, Speaker of the House
James K. Polk
, had done so to that time, the change was widely accepted.
The 1886 Act did not require a special presidential election to be held.
died, resigned or been removed from office, the Secretary of State would have become Acting President:
death, President Truman
lobbied for a revision of the law and consequently the Presidential Succession Act of 1947 was passed.
The new law restored the Congressional officers to places directly after the Vice President
, but switched their order from the 1792 Act, placing the Speaker of the House
first and the President pro tempore
second. The Cabinet
officers then followed, again in the order in which their respective departments were created with one exception: the Secretary of Defense
(a department created in 1947 following a merger of the Departments of War
and Navy
) was placed fifth in the line of succession, directly after the Secretary of the Treasury
. Thus, the Secretary of Defense
was put in the line of succession in the place that had been held by the Secretary of War
.
(b)
(c)
(d)
(e)
(f)
In the 1973 and 1974 cases, implementation of the act was put off by the ability to fill the two Vice Presidential vacancies under Section 2 of the Twenty-fifth Amendment.
During the September 11, 2001 terrorist attacks, several people holding offices in the line of succession (among them Speaker Dennis Hastert
and Senate President pro tempore Robert Byrd
) were taken to "secure locations" in order to guarantee that at least one officer in the line of succession would survive the attacks.
When the President attends an event with the Speaker of the House, the President pro tempore of the Senate, and the Cabinet, one of the members of the Cabinet does not attend. That person is the "designated successor" for that event. This is done so that, if the event is attacked and everyone else in the line of succession is killed, the "designated survivor
" would become Acting President
. During the inauguration of President Barack Obama on January 20, 2009, the Bush and Obama transition teams agreed to name Secretary of Defense Robert Gates
as the "designated survivor" and he was taken to a secure location instead of attending the ceremony.
in 2002 caused controversy that delayed its secretary being placed in the succession order.
Many in the Congress
felt the Secretary of Homeland Security
should have been placed higher in the order – the rationale being that, as the officer responsible for disaster relief and security, the Secretary would be more capable of acting as President than, say, the Secretary of Housing and Urban Development
. It was proposed that he be granted the position held by the Secretary of the Navy
prior to the formation of the Department of Defense
. In the 109th Congress
, legislation was introduced to place the Secretary of Homeland Security into the line of succession after the Attorney General, but the bill expired at the end of the 109th Congress and was not re-introduced.
The matter remained unresolved until March 9, 2006, when the Presidential Succession Act was amended to add the Secretary of Homeland Security after the Secretary of Veterans Affairs.
of the 1947 Act has been disputed. Yale Law School
Professor Akhil Reed Amar
says the current Presidential Succession Act is "a disastrous statute, an accident waiting to happen." There are two main areas of concern.
to the present day have argued that the term "Officer" excludes members of Congress.
In testimony before the Senate Judiciary Committee on September 16, 2003 Miller Baker stated:
In Is the Presidential Succession Law Constitutional, Akhil Reed Amar
and Vikram Amar
refer to Article I, Section 6, Clause 2 (a.k.a., Incompatibility Clause
) as evidence that members of the Congress cannot be in the Presidential line of succession. That clause states:
Even if a court heard a case regarding whether the Presidential Succession Act of 1947 is unconstitutional, a court may decide not to rule on the merits of such a case. For example, in The Political Question of Presidential Succession, Northwestern University
Professor Steven G. Calabresi
suggests that this Act's constitutionality may be a political question
.
argued that as well as going against the language of the Constitution, bumping violates the doctrine of separation of powers
by undermining the independence of the executive from the Congress:
United States presidential line of succession
The United States presidential line of succession defines who may become or act as President of the United States upon the incapacity, death, resignation, or removal from office of a sitting president or a president-elect.- Current order :This is a list of the current presidential line of...
to the powers and duties of the office of President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
in the event that neither a President nor Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
is able to "discharge the powers and duties of the office." The current Presidential Succession Act was adopted in 1947 and is codified at .
Congressional authority to enact such a law is twofold: Article II, Section 1, Clause 6 of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
and Section 3 of the Twentieth Amendment to the Constitution
Twentieth Amendment to the United States Constitution
The Twentieth Amendment to the United States Constitution establishes the beginning and ending of the terms of the elected federal offices. It also deals with scenarios in which there is no President-elect...
.
Presidential Succession Act of 1792
The Presidential Succession Act of 1792 consisted of sections 9 and 10 of a larger federal statute.Provisions
Section 9 declared that, in the event of the removal, resignation, or death of both the President and Vice President, the President pro tempore of the United States SenatePresident pro tempore of the United States Senate
The President pro tempore is the second-highest-ranking official of the United States Senate. The United States Constitution states that the Vice President of the United States is the President of the Senate and the highest-ranking official of the Senate despite not being a member of the body...
was next in line of succession after the Vice President, followed by the Speaker of the House of Representatives.
If this happened, section 10 required there to be a presidential election in December of the year in which section 9 was invoked (or in December of the next year, if there was less than two months to go until December and the presidential term was not about to expire).
Potential implementation
While the 1792 act was never implemented, there were ten instances when the Vice Presidency was vacant. Had the PresidentPresident of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
died, resigned or been removed from office during those times, the President pro tempore of the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
would have become the Acting President
Acting President of the United States
Acting President of the United States is a reference to a person who is legitimately exercising the Presidential powers even though that person does not hold the office of the President of the United States in his own right....
:
- Vice Presidents John TylerJohn TylerJohn Tyler was the tenth President of the United States . A native of Virginia, Tyler served as a state legislator, governor, U.S. representative, and U.S. senator before being elected Vice President . He was the first to succeed to the office of President following the death of a predecessor...
, Millard FillmoreMillard FillmoreMillard Fillmore was the 13th President of the United States and the last member of the Whig Party to hold the office of president...
, Andrew JohnsonAndrew JohnsonAndrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...
and Chester Arthur succeeded to the Presidency following the deaths of their predecessors. George ClintonGeorge Clinton (vice president)George Clinton was an American soldier and politician, considered one of the Founding Fathers of the United States. He was the first Governor of New York, and then the fourth Vice President of the United States , serving under Presidents Thomas Jefferson and James Madison. He and John C...
, Elbridge GerryElbridge GerryElbridge Thomas Gerry was an American statesman and diplomat. As a Democratic-Republican he was selected as the fifth Vice President of the United States , serving under James Madison, until his death a year and a half into his term...
, William R. KingWilliam R. KingWilliam Rufus DeVane King was the 13th Vice President of the United States for about six weeks , and earlier a U.S. Representative from North Carolina, Minister to France, and a Senator from Alabama...
, Henry WilsonHenry WilsonHenry Wilson was the 18th Vice President of the United States and a Senator from Massachusetts...
and Thomas A. HendricksThomas A. HendricksThomas Andrews Hendricks was an American politician who served as a Representative and a Senator from Indiana, the 16th Governor of Indiana , and the 21st Vice President of the United States...
died in office, and John C. CalhounJohn C. CalhounJohn Caldwell Calhoun was a leading politician and political theorist from South Carolina during the first half of the 19th century. Calhoun eloquently spoke out on every issue of his day, but often changed positions. Calhoun began his political career as a nationalist, modernizer, and proponent...
resigned.
The act twice came very close to being implemented. In 1844, President Tyler narrowly missed being killed (along with Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
Abel P. Upshur
Abel P. Upshur
Abel Parker Upshur was an American lawyer, judge and politician from Virginia. Upshur was active in Virginia state politics and later served as Secretary of the Navy and Secretary of State during the Whig administration of President John Tyler...
and Secretary of the Navy
United States Secretary of the Navy
The Secretary of the Navy of the United States of America is the head of the Department of the Navy, a component organization of the Department of Defense...
Thomas Walker Gilmer
Thomas Walker Gilmer
Thomas Walker Gilmer was an American statesman.-Personal life:Gilmer was born to George and Eliza Gilmer at their farm, "Gilmerton", in Albemarle County, Virginia. He was taught by private tutors in Charlottesville and Staunton, and studied law in Liberty , Virginia.Gilmer practiced law in...
) by the explosion of a bow gun on board the U.S.S. Princeton
USS Princeton (1843)
The first Princeton was the first screw steam warship in the United States Navy. She was launched in 1843, decommissioned in 1847, and broken up in 1849....
; had this occurred, President pro tempore Willie Person Mangum
Willie Person Mangum
Willie Person Mangum was a U.S. Senator from the state of North Carolina between 1831 and 1836 and between 1840 and 1853. He was one of the founders and leading members of the Whig party, and was a candidate for President on a Whig ticket in 1836.Mangum was born in Durham County, North Carolina...
would have become Acting President. In 1868, after President Andrew Johnson
Andrew Johnson
Andrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...
was impeached
Impeachment in the United States
Impeachment in the United States is an expressed power of the legislature that allows for formal charges against a civil officer of government for crimes committed in office...
by the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, the Senate came one vote short of removing him from office; if Johnson had been removed, President pro tempore Benjamin Wade
Benjamin Wade
Benjamin Franklin "Bluff" Wade was a U.S. lawyer and United States Senator. In the Senate, he was associated with the Radical Republicans of that time.-Early life:...
would have become Acting President.
Provisions
In 1886, following the death of Vice President Thomas A. HendricksThomas A. Hendricks
Thomas Andrews Hendricks was an American politician who served as a Representative and a Senator from Indiana, the 16th Governor of Indiana , and the 21st Vice President of the United States...
in the previous year, a new Presidential Succession Act was adopted, replacing the President pro tempore of the Senate and the Speaker of the House on the list with the members of the Cabinet
United States Cabinet
The Cabinet of the United States is composed of the most senior appointed officers of the executive branch of the federal government of the United States, which are generally the heads of the federal executive departments...
. The order of succession was determined by the order in which each cabinet department had been created - with the Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
being first in line after the Vice President. As six former Secretaries of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
had gone on to be elected President in their own right and as only one Congressional leader, Speaker of the House
Speaker of the United States House of Representatives
The Speaker of the United States House of Representatives, or Speaker of the House, is the presiding officer of the United States House of Representatives...
James K. Polk
James K. Polk
James Knox Polk was the 11th President of the United States . Polk was born in Mecklenburg County, North Carolina. He later lived in and represented Tennessee. A Democrat, Polk served as the 17th Speaker of the House of Representatives and the 12th Governor of Tennessee...
, had done so to that time, the change was widely accepted.
The 1886 Act did not require a special presidential election to be held.
Potential implementation
As with the 1792 act, the act of 1886 was never implemented during its 61 years, but there were five instances where the Vice Presidency was vacant. Had the PresidentPresident of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
died, resigned or been removed from office, the Secretary of State would have become Acting President:
- Vice Presidents Theodore RooseveltTheodore RooseveltTheodore "Teddy" Roosevelt was the 26th President of the United States . He is noted for his exuberant personality, range of interests and achievements, and his leadership of the Progressive Movement, as well as his "cowboy" persona and robust masculinity...
, Calvin CoolidgeCalvin CoolidgeJohn Calvin Coolidge, Jr. was the 30th President of the United States . A Republican lawyer from Vermont, Coolidge worked his way up the ladder of Massachusetts state politics, eventually becoming governor of that state...
and Harry S. TrumanHarry S. TrumanHarry S. Truman was the 33rd President of the United States . As President Franklin D. Roosevelt's third vice president and the 34th Vice President of the United States , he succeeded to the presidency on April 12, 1945, when President Roosevelt died less than three months after beginning his...
assumed the Presidency following the deaths of their predecessors, while Garret HobartGarret HobartGarret Augustus Hobart was the 24th Vice President of the United States, serving from March 4, 1897 until his death. He was the sixth American vice president to die in office....
and James ShermanJames S. ShermanJames Schoolcraft Sherman was a United States Representative from New York and the 27th Vice President of the United States . He was a member of the Baldwin, Hoar, and Sherman families.-Early life:...
died in office.
Current Act
Shortly after President Roosevelt'sFranklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...
death, President Truman
Harry S. Truman
Harry S. Truman was the 33rd President of the United States . As President Franklin D. Roosevelt's third vice president and the 34th Vice President of the United States , he succeeded to the presidency on April 12, 1945, when President Roosevelt died less than three months after beginning his...
lobbied for a revision of the law and consequently the Presidential Succession Act of 1947 was passed.
The new law restored the Congressional officers to places directly after the Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...
, but switched their order from the 1792 Act, placing the Speaker of the House
Speaker of the United States House of Representatives
The Speaker of the United States House of Representatives, or Speaker of the House, is the presiding officer of the United States House of Representatives...
first and the President pro tempore
President pro tempore of the United States Senate
The President pro tempore is the second-highest-ranking official of the United States Senate. The United States Constitution states that the Vice President of the United States is the President of the Senate and the highest-ranking official of the Senate despite not being a member of the body...
second. The Cabinet
United States Cabinet
The Cabinet of the United States is composed of the most senior appointed officers of the executive branch of the federal government of the United States, which are generally the heads of the federal executive departments...
officers then followed, again in the order in which their respective departments were created with one exception: the Secretary of Defense
United States Secretary of Defense
The Secretary of Defense is the head and chief executive officer of the Department of Defense of the United States of America. This position corresponds to what is generally known as a Defense Minister in other countries...
(a department created in 1947 following a merger of the Departments of War
United States Department of War
The United States Department of War, also called the War Department , was the United States Cabinet department originally responsible for the operation and maintenance of the United States Army...
and Navy
United States Department of the Navy
The Department of the Navy of the United States of America was established by an Act of Congress on 30 April 1798, to provide a government organizational structure to the United States Navy and, from 1834 onwards, for the United States Marine Corps, and when directed by the President, of the...
) was placed fifth in the line of succession, directly after the Secretary of the Treasury
United States Secretary of the Treasury
The Secretary of the Treasury of the United States is the head of the United States Department of the Treasury, which is concerned with financial and monetary matters, and, until 2003, also with some issues of national security and defense. This position in the Federal Government of the United...
. Thus, the Secretary of Defense
United States Secretary of Defense
The Secretary of Defense is the head and chief executive officer of the Department of Defense of the United States of America. This position corresponds to what is generally known as a Defense Minister in other countries...
was put in the line of succession in the place that had been held by the Secretary of War
United States Secretary of War
The Secretary of War was a member of the United States President's Cabinet, beginning with George Washington's administration. A similar position, called either "Secretary at War" or "Secretary of War," was appointed to serve the Congress of the Confederation under the Articles of Confederation...
.
Current text
3 USC § 19. Vacancy in offices of both President and Vice President; officers eligible to act.- (a)
- (2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.
- If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.
- An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that -
- (1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and
- (2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.
- (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.
- (2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.
- (3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.
- Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution. Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, inability, or failure to qualify, of the President pro tempore, and only to officers not under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon them.
- During the period that any individual acts as President under this section, his compensation shall be at the rate then provided by law in the case of the President.
Potential implementations
As with its predecessors, this act has not been implemented. There have been four instances where it would have been if the President had died, resigned or been removed from office:- During the first two years of this act being in effect there was no Vice President, because Harry S. TrumanHarry S. TrumanHarry S. Truman was the 33rd President of the United States . As President Franklin D. Roosevelt's third vice president and the 34th Vice President of the United States , he succeeded to the presidency on April 12, 1945, when President Roosevelt died less than three months after beginning his...
had become President upon Franklin D. RooseveltFranklin D. RooseveltFranklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...
's death in 1945.
- Following the assassination of President John F. KennedyJohn F. KennedyJohn Fitzgerald "Jack" Kennedy , often referred to by his initials JFK, was the 35th President of the United States, serving from 1961 until his assassination in 1963....
in 1963, Lyndon B. JohnsonLyndon B. JohnsonLyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
became President and so there was no Vice President for fourteen months.
- There was no Vice President during the two months in 1973 between Spiro AgnewSpiro AgnewSpiro Theodore Agnew was the 39th Vice President of the United States , serving under President Richard Nixon, and the 55th Governor of Maryland...
's resignation as Vice President and Gerald FordGerald FordGerald Rudolph "Jerry" Ford, Jr. was the 38th President of the United States, serving from 1974 to 1977, and the 40th Vice President of the United States serving from 1973 to 1974...
's confirmation as Vice President.
- In 1974, during the four-month period between Gerald Ford's succession to the Presidency and the confirmation of Vice President Nelson RockefellerNelson RockefellerNelson Aldrich Rockefeller was the 41st Vice President of the United States , serving under President Gerald Ford, and the 49th Governor of New York , as well as serving the Roosevelt, Truman and Eisenhower administrations in a variety of positions...
.
In the 1973 and 1974 cases, implementation of the act was put off by the ability to fill the two Vice Presidential vacancies under Section 2 of the Twenty-fifth Amendment.
During the September 11, 2001 terrorist attacks, several people holding offices in the line of succession (among them Speaker Dennis Hastert
Dennis Hastert
John Dennis "Denny" Hastert was the 59th Speaker of the House serving from 1999 to 2007. He represented as a Republican for twenty years, 1987 to 2007.He is the longest-serving Republican Speaker in history...
and Senate President pro tempore Robert Byrd
Robert Byrd
Robert Carlyle Byrd was a United States Senator from West Virginia. A member of the Democratic Party, Byrd served as a U.S. Representative from 1953 until 1959 and as a U.S. Senator from 1959 to 2010...
) were taken to "secure locations" in order to guarantee that at least one officer in the line of succession would survive the attacks.
When the President attends an event with the Speaker of the House, the President pro tempore of the Senate, and the Cabinet, one of the members of the Cabinet does not attend. That person is the "designated successor" for that event. This is done so that, if the event is attacked and everyone else in the line of succession is killed, the "designated survivor
Designated survivor
A designated survivor is a member of the United States Cabinet who is appointed to be at a physically distant, secure, and undisclosed location when the president and the country's other top leaders are gathered at a single location, such as during State of the Union addresses and presidential...
" would become Acting President
Acting President of the United States
Acting President of the United States is a reference to a person who is legitimately exercising the Presidential powers even though that person does not hold the office of the President of the United States in his own right....
. During the inauguration of President Barack Obama on January 20, 2009, the Bush and Obama transition teams agreed to name Secretary of Defense Robert Gates
Robert Gates
Dr. Robert Michael Gates is a retired civil servant and university president who served as the 22nd United States Secretary of Defense from 2006 to 2011. Prior to this, Gates served for 26 years in the Central Intelligence Agency and the National Security Council, and under President George H. W....
as the "designated survivor" and he was taken to a secure location instead of attending the ceremony.
Revisions
The 1947 act has been modified several times with the addition of new cabinet positions, but the creation of the United States Department of Homeland SecurityUnited States Department of Homeland Security
The United States Department of Homeland Security is a cabinet department of the United States federal government, created in response to the September 11 attacks, and with the primary responsibilities of protecting the territory of the United States and protectorates from and responding to...
in 2002 caused controversy that delayed its secretary being placed in the succession order.
Many in the Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
felt the Secretary of Homeland Security
United States Secretary of Homeland Security
The United States Secretary of Homeland Security is the head of the United States Department of Homeland Security, the body concerned with protecting the American homeland and the safety of American citizens. The Secretary is a member of the President's Cabinet. The position was created by the...
should have been placed higher in the order – the rationale being that, as the officer responsible for disaster relief and security, the Secretary would be more capable of acting as President than, say, the Secretary of Housing and Urban Development
United States Secretary of Housing and Urban Development
The United States Secretary of Housing and Urban Development is the head of the United States Department of Housing and Urban Development, a member of the President's Cabinet, and thirteenth in the Presidential line of succession. The post was created with the formation of the Department of Housing...
. It was proposed that he be granted the position held by the Secretary of the Navy
United States Secretary of the Navy
The Secretary of the Navy of the United States of America is the head of the Department of the Navy, a component organization of the Department of Defense...
prior to the formation of the Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
. In the 109th Congress
109th United States Congress
The One Hundred Ninth United States Congress was the legislative branch of the United States, composed of the United States Senate and the United States House of Representatives, from January 3, 2005 to January 3, 2007, during the fifth and sixth years of George W. Bush's presidency. House members...
, legislation was introduced to place the Secretary of Homeland Security into the line of succession after the Attorney General, but the bill expired at the end of the 109th Congress and was not re-introduced.
The matter remained unresolved until March 9, 2006, when the Presidential Succession Act was amended to add the Secretary of Homeland Security after the Secretary of Veterans Affairs.
Constitutionality
The constitutionalityConstitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...
of the 1947 Act has been disputed. Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
Professor Akhil Reed Amar
Akhil Reed Amar
Akhil Reed Amar is an American legal scholar, an expert on constitutional law and criminal procedure. Having been the Southmayd Professor of Law at Yale Law School, he was named the Sterling Professor of Law there in 2008...
says the current Presidential Succession Act is "a disastrous statute, an accident waiting to happen." There are two main areas of concern.
Meaning of "officer"
There are concerns regarding the constitutionality of having members of Congress in the line of succession. Article II, Section 1, Clause 6 of the Constitution specifies that only an "Officer" of the United States may be designated as a Presidential successor. Constitutional scholars from James MadisonJames Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
to the present day have argued that the term "Officer" excludes members of Congress.
In testimony before the Senate Judiciary Committee on September 16, 2003 Miller Baker stated:
In Is the Presidential Succession Law Constitutional, Akhil Reed Amar
Akhil Reed Amar
Akhil Reed Amar is an American legal scholar, an expert on constitutional law and criminal procedure. Having been the Southmayd Professor of Law at Yale Law School, he was named the Sterling Professor of Law there in 2008...
and Vikram Amar
Vikram Amar
Vikram David Amar is professor and the Associate Dean for Academic Affairs at the UC Davis School of Law . Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the...
refer to Article I, Section 6, Clause 2 (a.k.a., Incompatibility Clause
Ineligibility Clause
The Ineligibility Clause, one of the two clauses often called the Emoluments Clause, and sometimes also referred to as the Incompatibility Clause or the Sinecure Clause, is found in Article 1, Section 6, Clause 2 of the United States Constitution...
) as evidence that members of the Congress cannot be in the Presidential line of succession. That clause states:
Even if a court heard a case regarding whether the Presidential Succession Act of 1947 is unconstitutional, a court may decide not to rule on the merits of such a case. For example, in The Political Question of Presidential Succession, Northwestern University
Northwestern University
Northwestern University is a private research university in Evanston and Chicago, Illinois, USA. Northwestern has eleven undergraduate, graduate, and professional schools offering 124 undergraduate degrees and 145 graduate and professional degrees....
Professor Steven G. Calabresi
Steven G. Calabresi
Steven G. Calabresi is a law professor at Northwestern University. After graduating cum laude from Yale University, he attended Yale Law School, where he was editor of the Yale Law Journal, and went on to clerk for The Hon. Robert Bork on the D.C...
suggests that this Act's constitutionality may be a political question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
.
Bumping
The Act is also controversial because it provides that if a cabinet officer becomes Acting President, he serves only until a new Speaker of the House or a new President Pro Tempore of the Senate is chosen, who would then replace him as Acting President. This is sometimes referred to as "bumping" and appears to contradict the text of the Constitution, which says (in Article II, section 1, Clause 6): The Continuity of Government CommissionContinuity of Government Commission
The Continuity of Government Commission is a think tank set up in 2002 to recommend improvements on the constitutional and statutory provisions for the continuity of government in the United States. It was set up by the American Enterprise Institute and the Brookings Institution following the...
argued that as well as going against the language of the Constitution, bumping violates the doctrine of separation of powers
Separation of powers under the United States Constitution
Separation of powers is a political doctrine originating from the United States Constitution, according to which the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This U.S...
by undermining the independence of the executive from the Congress: