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The New Presidential Succession Act

  • Joseph E. Kallenbach (a1)

Extract

Among the responsibilities which the Constitution imposes upon Congress is the regulation of the succession to the office of president in certain contingencies. The framers of the Constitution themselves disposed of the problem in part by creating the post of vice-president and making that officer a first recourse in filling a vacancy in the presidential office. Realizing the need for designating more than one prospective successor, since vacancies might occur in both offices simultaneously, the convention at a late stage in its proceedings added as a seeming afterthought a clause authorizing Congress to make further provision by law on the subject. Although seven presidents and seven vice-presidents have died in office and one vice-president has resigned during the time the Constitution has been in operation, the situation envisaged by the framers has never actually arisen. Nevertheless, the power entrusted to Congress is important potentially. During nearly one-fourth of the time since 1789, a federal statute rather than a constitutional provision has governed the succession to the presidential office in an immediate sense.

Two fundamentally opposed theories have been advanced concerning the officer upon whom Congress should cause the powers and duties of the presidency to devolve. One is that the presiding officer of the House or the Senate should be designated, in order to insure that any person becoming acting president shall achieve that status through an elective process.

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1 Art. II, sec. 1, par. 6, of the Constitution, which deals with the matter, reads: “In case of the removal of the President from office, or of his death, resignation, or removal, or inability to perform the powers and duties of said office, the same shall devolve upon the Vice President, and the Congress may by law provide for the case of the 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.” Sec. 3 of the Twentieth Amendment, adopted in 1933, amplifies the original authorizing clause as follows: “… the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”

2 The seven presidents who died in office left unexpired portions of their terms totaling almost 23 years. In addition, there have been about 13 years of vacancy in the office of vice-president. The fifteen periods (including the present one) during which the succession arrangements based on statute have named the person next in line for the presidency total approximately 36 years—amounting to about 22½ per cent of the entire period from 1789 to 1949.

3 Act of Mar. 1, 1792, ch. 8, secs. 9 and 10; 1 Stat. 240.

4 Act of January 19, 1886, ch. 4, secs. 1–2; 24 Stat. 1.

5 For an account of the origin of the 1886 law and a criticism of this feature of it, see Hamlin, Charles S., “The Presidential Succession Act of 1886,” Harvard Law Review, Vol. 18, pp. 182195 (Jan., 1905).

6 Cong. Record, 79th Cong., 1st Sess., p. 6272; House Doc. 246, 79th Cong., 1st Sess.

7 Cong. Record, 79th Cong., 1st Sess., pp. 7008–7028. The bill, H.R. 3587, was sponsored by Representative Sumners, Democrat, of Texas, chairman of the House Judiciary Committee. As reported from committee, the bill contained a section making it mandatory to call a special election of a successor to fill out the unexpired portion of the presidential term if a vacancy were created ninety days or more prior to the regular midterm congressional election. Strong objection was voiced to this feature of the plan on grounds of policy as well as alleged unconstitutionality, and it was eliminated during consideration on the floor. Except as to this provision, there was slight opposition to the bill.

8 The President's special message was transmitted on June 19. On June 27, he announced the resignation of Edward Stettinius as secretary of state and on July 3 the appointment of James F. Byrnes as successor. Stettinius was an appointee of President Roosevelt, and his party status as a Democrat was somewhat vague. Byrnes was a “regular” Democrat, with extensive political experience. President Truman's suggestion of a change in the succession law was viewed in some quarters as a maneuver designed to meet the charge that the shift in the secretaryship of state was dictated by a desire to put a “safe” and experienced party man in a position to succeed as president and party leader.

9 On March 14, 1946, the Senate passed Senate Concurrent Resolution No. 50, sponsored by Senator Green, Democrat, of Rhode Island, and Senator Smith, Republican, of New Jersey. The resolution would have set up a joint committee of five members from each house for the purpose of studying and making recommendations on “all matters connected with the succession to the Presidency and the election of the President and Vice President from the time of nomination … through the time of their election and the time of their inauguration until the termination of their respective terms of office, with the purpose of making the law certain as to the Presidential election and succession.” Cong. Record, 79th Cong., 2nd Sess., pp. 2237–2238.

10 See his letter of February 5, 1947, to President pro tempore Vandenberg and Speaker Martin again endorsing his original plan. Cong. Record (current), 80th Cong., 1st Sess., p. 7853.

11 Ibid., pp. 7851–7874, 7931–7951. The bill, S. 564, was introduced and piloted through the Senate by Senator Wherry, Republican, of Nebraska. The vote on passage followed party lines quite closely, with 47 Republicans and 3 Democrats favoring the bill, and 35 Democrats opposing.

12 Ibid., pp. 8792–8807. The House vote was 365 to 11, with 10 Democrats and one Republican casting the opposing votes.

13 Public Law 199–80th Cong., 1st Sess.

14 The new law includes in the line of succession the three cabinet officers (secretary of agriculture, secretary of commerce, and secretary of labor) whose posts were created after the passage of the 1886 law, and who consequently were not covered by its provisions. Under the National Security Act of 1947, the new secretary for defense is given the place in the line of succession occupied formerly by the secretary of war, and the secretary of the navy is dropped from the list. See Public Law No. 253, sec. 311, 80th Cong., 1st Sess. During Senate consideration of the Wherry bill, Senator Wiley, Republican, of Wisconsin, proposed an amendment that would also have included in the line of succession following the cabinet officers the “highest ranking military or naval officer of the United States.” His amendment, which he explained was designed to meet a situation that might conceivably arise in the event of an atomic bomb attack on the seat of the government, was rejected. Cong. Record (current), 80th Cong., 1st Sess., pp. 7951–7952.

15 During consideration of the bill in the Senate, Senator Russell, Democrat, of Georgia, proposed an amendment which would have reversed the order of the speaker and the president pro tempore in the line of succession, giving the latter first place after the vice-president as in the 1792 law. The amendment was voted down, 55 to 31, after Senator Vandenberg, the incumbent president pro tempore, spoke emphatically against it. Ibid., pp. 7946–7947.

16 The 1886 law did not require an acting president to resign his departmental headship. Rather, it seemed to be based on the theory that an acting president must continue to occupy the subordinate office which entitled him to assume the powers and duties of the presidency.

17 In 1941, the House of Representatives passed a bill introduced by Representative Kefauver, Democrat, of Tennessee, dealing with this aspect of the succession. It provided for temporary assumption of the presidential office by the speaker of the House, or by the president pro tempore of the Senate when a speaker was not available, if there were no qualified president-elect or vice-president-elect on hand at the beginning of a new presidential term. The Senate, however, failed to act on the bill. Cong. Record, 77th Cong., 1st Sess., pp. 3259–3261. Unlike the new Presidential Succession Act, the Kefauver bill provided that temporary assumption of the powers of the presidency by one of the officers mentioned should not require relinquishment of his congressional post; on the contrary, it provided specifically that he should resume it as soon as a regularly chosen president or vice-president should qualify.

18 Cong. Record (current), 80th Cong., 1st Sess., p. 7957.

19 The tentative draft of a constitution as it came from the Committee of Detail contained a provision designating the president pro tempore of the Senate as the officer on whom the presidency should devolve in case of vacancy. Later—after it had been decided that the president should be independently elected—objection was made to this provision on the ground that it would be impracticable and inconsistent with the idea of independence of the two branches of government. Eventually, an independently elected vice-president was provided for. Cf. Madison, James, Journal of the Federal Convention (Scott ed., 1898), pp. 458, 613–614, 654–660, 663–680, 707–708, 756757.

20 The 1792 statute was adopted after a protracted struggle between the two houses. Dominated by Federalists under Hamilton's leadership, the Senate wished to have the president pro tempore designated as next in line. The House, under the influence of Jefferson's followers, insisted upon placing the succession in the heads of the executive departments, beginning with the secretary of state, who was at that time Jefferson himself. The House eventually deferred to the Senate's wishes when the speaker was placed in the line of succession following the president pro tempore, although the compromise was agreed to by the narrow margin of 31 to 24 in the House. Cf. remarks of Representative Monroney, Democrat, of Oklahoma, Cong. Record, 79th Cong., 1st Sess., p. 7012.

21 Hamlin, op. cit.

22 Under the new act, the speaker of the House will be directly concerned in effecting the removal of a president when he himself is the officer next in line to succeed. Senator Wade, of Ohio, president pro tempore of the Senate in 1868, participated as a member of the Senate when it sat as a court in the trial of President Johnson and voted to remove the President from office. See DeWitt, David M., The Impeachment and Trial of President Johnson (1903), pp. 390–393, 550, 553.

23 During Senate consideration of the Wherry bill, Senator McMahon, Democrat, of Connecticut, proposed a substitute amendment which would have continued the 1886 law in effect, with modifications. Additional sections would have required the reassembling of the previously chosen presidential electors to elect a new president and vice-president to fill out an unexpired term in case the succession should reach one of the officers named in the statutory line, but only in the event that the vacancy should occur at least 120 days before the time for election of a new president and vice-president to a regular four-year term. The McMahon substitute was rejected without a roll-call vote. Cong. Record (current) 80th Cong., 1st Sess., pp. 7936–7937, 7949–7950.

24 The American Institute of Public Opinion reported in March, 1947, that 41 per cent of those polled preferred to place the speaker next in line, as proposed by the President; 44 per cent favored the secretary of state, as provided in the 1886 law; and five per cent were undecided. See American Institute of Public Opinion, News Release, Mar. 17, 1947.

25 Limitations of space make it impossible to review the precedents and judicial decisions bearing on this point. It should be noted, however, that whether a member of Congress is an “officer of the United States” in the constitutional sense is not solely the issue in this instance. The new act makes the presiding officers of the two houses eligible for the succession because they hold the position of speaker or president pro tempore, and not because they hold seats in Congress. Hence the real issue is whether the incumbents of these positions are “officers of the United States.” Furthermore, the empowering clause in section 3 of the Twentieth Amendment, upon which the new law rests in part, does not require the person designated to act as president in the contingency therein mentioned to be an “officer” of the United States. For an able exposition of the case against the constitutionality of the 1947 law on this and other grounds, see the memorandum prepared by the staff of Senator Hatch and presented during the Senate's deliberations. Cong. Record (current), 80th Cong., 1st Sess., pp. 7932–7936. Representative Michener, Republican, of Michigan, chairman of the House Judiciary Committee, received an opinion from Acting Attorney General McGregor on June 11, 1947, in which the proposed legislation was held to be constitutional. Ibid., pp. 8792–8794.

26 Art. I, sec. 6, par. 2.

27 The clause which confers power on Congress to legislate on the succession was proposed by Edmund Randolph. His motion provided that the officer designated to act should serve “until the time of electing a President shall arrive.” Madison objected to this phraseology, pointing out that it would “prevent the supply of the vacancy by an intermediate election of the President.” He proposed a change to the language now found in the Constitution: “and he shall act accordingly until the disability be removed or a President shall be elected.” Madison, James, Journal of the Federal Convention (Scott ed., 1898), pp. 676–677, 708, 733, 757.

28 Madison, in a letter to Edmund Pendleton shortly after passage of the 1792 law, which he opposed on various grounds, stated the point as follows: “Either they [the president pro tempore and the speaker] will retain their Legislative stations, and then incompatible functions will be blended; or the incompatibility will supersede those stations, and then those being the substratum of the adventitious functions, these must fail also. The Constitution says what officers etc. which seems to make it not an appointment or a translation; but an annexation of one office or trust to another office.” Writings of James Madison (Hunt, ed., 1906), VI, p. 95n.

29 A vice-president, when assurning the powers and duties of the presidency because of the death of the incumbent, has come, by usage, to be recognized as “president,” and not “acting president” as the Constitution would seem to imply. For a discussion of the origin and development of this usage, see Corwin, Edward S., The President: Office and Powers (rev. ed., 1941), pp. 5355; Horwill, Herbert W., The Usages of the American Constitution (1925), pp. 5887.

30 In line with this approach to the problem, five minority members of the Senate Committee on Rules and Administration filed a minority report against the Wherry bill in which they urged passage of the Green-Smith resolution, supra, note 9, as a preliminary to any change in the succession law. Unsuccessful efforts to recommit the Wherry bill with this object in view were made during Senate consideration. See S. Rept. 80 on S. 564 and the Cong. Record (current), 80th Cong., 1st Sess., pp. 7938. 7948.

The New Presidential Succession Act

  • Joseph E. Kallenbach (a1)

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