Presidential Succession: An Overview with Analysis of Legislation Proposed in the 108th Congress
CRS Report for Congress
An Overview with Analysis of
Legislation Proposed in the
Updated June 29, 2005
Thomas H. Neale
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Presidential and Vice Presidential Succession:
Overview and Current Legislation
Whenever the office of President of the United States becomes vacant due to
“removal ... death or resignation” of the chief executive, the Constitution provides
that “the Vice President shall become President.” When the office of Vice President
becomes vacant for any reason, the President nominates a successor, who must be
confirmed by a majority vote of both houses of Congress. If both of these offices are
vacant simultaneously, then, under the Succession Act of 1947, the Speaker of the
House of Representatives becomes President, after resigning from the House and as
Speaker. If the speakership is also vacant, then the President Pro Tempore of the
Senate becomes President, after resigning from the Senate and as President Pro
Tempore. If both of these offices are vacant, or if the incumbents fail to qualify for
any reason, then cabinet officers are eligible to succeed, in the order established by
law (3 U.S.C. §19, see Table 3). In every case, a potential successor must be duly
sworn in his or her previous office, and must meet other constitutional requirements
for the presidency, i.e., be at least 35 years of age, a “natural born citizen,” and for
14 years, a “resident within the United States.” Succession-related provisions are
derived from the Constitution, statutory law, and political precedents of the past two
centuries. Since 1789, Vice Presidents have succeeded on nine occasions, eight
times due to the death of the incumbent, and once due to resignation (see Table 1).
The vice presidency has become vacant on 18 occasions since 1789. Nine of these
occurred when the Vice President succeeded to the presidency; seven resulted from
the death of the incumbent; and two were due to resignation (see Table 2).
The events of September 11, 2001 raised concerns about continuity in the
presidency and succession issues in general. Following establishment of the
Department of Homeland Security (DHS), legislation to include the DHS secretary
in the line of succession was introduced in the 108th Congress: S. 148 , H.R. 1354,
and H.R. 2319. These bills sought to include the Secretary of Homeland Security in
the line of succession following the Attorney General, while H.R. 2319 also made
further amendments to the Succession Act of 1947. Other measures sought major
changes to existing succession law (H.R. 2749, S. 2073, S.Res. 419), or proposed
actions not requiring legislation (H.Res. 775 and S.Con.Res. 89). S. 148 passed the
Senate by unanimous consent on June 27, 2003, but no action beyond committee
referral took place on any of the other measures. The Senate Committees on the
Judiciary and Rules and Administration held a joint hearing September 16, 2003 to
review the Succession Act of 1947 and the question of succession in general. An
informational hearing was also held by the Subcommittee on the Constitution of the
House Committee on the Judiciary on October 6, 2004.
For additional related information, please consult CRS Report RS20827,
Presidential and Vice Presidential Terms and Tenure, by Thomas H. Neale, and CRS
Report RS20260, Presidential Disability: An Overview, by Thomas H. Neale. This
report will remain available for Congress, but will not be updated.
Constitutional Provisions and the Succession Act of 1792..............1
Presidential Succession in 1841: Setting a Precedent..................2th
The Succession Act of 1886 and the 20 Amendment (1933)............2
The Presidential Succession Act of 1947............................3th
The 25 Amendment and Current Procedures........................4
Presidential Succession in the Post-9/11 Era.........................5
Proposed Legislation in the 108th Congress.........................13
Revising the Order of Succession to Include the Secretary of
Revisiting the Succession Act of 1947........................14
Other Options for Change......................................19
List of Tables
Table 1. Presidential Successions by Vice Presidents....................22
Table 2. Vice Presidential Successions Under the 25th Amendment.........22
Table 3. The Order of Presidential Succession(under the Succession Act
Presidential and Vice Presidential
Succession: Overview and
Constitutional Provisions and the Succession Act of 1792
Article II of the Constitution, as originally adopted, provided the most basic
building block of succession procedures, stating that:
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 be1
This language evolved during the Constitutional Convention of 1787. The two
most important early drafts of the Constitution neither provided for a Vice President
nor considered succession to the presidency, and it was only late in the convention
proceedings that the office of Vice President emerged and the language quoted above2
was adopted. While the need for a Vice President was debated during the
ratification process, the question of succession received little attention, meriting only
one reference in the supporting Federalist papers: “the Vice-President may
occasionally become a substitute for the President, in the supreme Executive3
m agi st racy.”
The Second Congress (1791-1793) exercised its constitutional authority to
provide for presidential vacancy or inability in the Succession Act of 1792 (1 Stat.
240). After examining several options, including designating the Secretary of State
or Chief Justice as successor, Congress settled on the President Pro Tempore of the
Senate and the Speaker of the House of Representatives, in that order. These
officials were to succeed if the presidency and vice presidency were both vacant.
During House debate on the bill, there was considerable debate on the question of
1 U.S. Constitution. Article II, Section 1, clause 6. This text was later changed and clarified
by Section 1 of the 25th Amendment.
2 John D. Feerick, From Failing Hands: The Story of Presidential Succession (New York:
Fordham University Press, 1965), pp. 42-43.
3 Alexander Hamilton, “Federalist No. 68,” in Alexander Hamilton, James Madison, and
John Jay, The Federalist, Benjamin F. Wright, ed. (Cambridge, MA: Belknap Press of
Harvard University Press, 1966), p. 433.
whether the President Pro Tempore and the Speaker could be considered “officers”
in the sense intended by the Constitution. If so, they were eligible to succeed, if not,
they could not be included in the line of succession. The House expressed its
institutional doubts when it voted to strike this provision, but the Senate insisted on
it, and it became part of the bill enacted and signed by the President.4 Although the
Speaker and President pro tempore were thus incorporated in the line of succession,
they would serve only temporarily, however, since the act also provided for a special
election to fill the vacancy, unless it occurred late in the last full year of the
incumbent’s term of office.5 Finally, this and both later succession acts required that
designees meet the constitutional requirements of age, residence, and natural born
Presidential Succession in 1841: Setting a Precedent
The first succession of a Vice President occurred when President William Henry
Harrison died in 1841. Vice President John Tyler’s succession set an important
precedent and settled a constitutional question. Debate at the Constitutional
Convention, and subsequent writing on succession, indicated that the founders
intended the Vice President to serve as acting President in the event of a presidential
vacancy or disability, assuming “the powers and duties” of the office, but not actually
becoming President.6 Tyler’s status was widely debated at the time, but the Vice
President decided to take the presidential oath, and considered himself to have
succeeded to Harrison’s office, as well as to his powers and duties. After some
discussion of the question, Congress implicitly ratified Tyler’s decision by referring
to him as “the President of the United States.”7 This action set a precedent for
succession that subsequently prevailed, and was later formally incorporated into the
Constitution by Section 1 the 25th Amendment.
The Succession Act of 1886 and the 20th Amendment (1933)
President James A. Garfield’s death led to a major change in succession law.
Shot by an assassin on July 2, 1881, the President struggled to survive for 79 days
before succumbing to his wound on September 19. Vice President Chester A. Arthur
took office without incident, but the offices of Speaker and President Pro Tempore
were vacant throughout the President’s illness, due to the fact that the House elected
in 1880 had yet to convene, and the Senate had been unable to elect a President Pro
4 Feerick, From Failing Hands, pp. 58-60.
5 It should be recalled that during this period presidential terms ended on March 4 of the
year after the presidential election. Also, the act provided only for election of the President,th
since electors cast two votes for President during this period (prior to ratification of the 12
Amendment, which specified separate electoral votes for President and Vice President), with
the electoral vote runner-up elected Vice President.
6 Ruth Silva, Presidential Succession (New York: Greenwood Press, 1968 (c. 1951)), p. 10;
Feerick, From Failing Hands, p. 56.
7 Congressional Globe, vol. 10, May 31, June 1, 1841, pp. 3-5.
Tempore because of partisan strife.8 Congress subsequently passed the Succession
Act of 1886 (24 Stat. 1) in order to insure the line of succession and guarantee that
potential successors would be of the same party as the deceased incumbent. This
legislation transferred succession after the Vice President from the President Pro
Tempore and the Speaker to cabinet officers in the chronological order in which their
departments were created, provided they had been duly confirmed by the Senate and
were not under impeachment by the House. Further, it eliminated the requirement for
a special election, thus ensuring that any future successor would serve the full
balance of the presidential term. This act governed succession until 1947.
Section 3 of the 20th Amendment, ratified in 1933, clarified one detail of
presidential succession procedure by declaring that, if a President-elect dies before
being inaugurated, the Vice President-elect becomes President-elect and is
The Presidential Succession Act of 1947
In 1945, Vice President Harry S Truman succeeded as President on the death of
Franklin D. Roosevelt. Later that year, he proposed that Congress revise the order
of succession, placing the Speaker of the House and the President Pro Tempore of
the Senate in line behind the Vice President and ahead of the cabinet. The incumbent
would serve until a special election, scheduled for the next intervening congressional
election, filled the presidency and vice presidency for the balance of the term.
Truman argued that it was more appropriate to have popularly elected officials first
in line to succeed, rather than appointed cabinet officers. A bill incorporating the
President’s proposal, minus the special election provision, passed the House in 1945,
but no action was taken in the Senate during the balance of the 79th Congress.
The President renewed his call for legislation when the 80th Congress convened
in 1947, and legislation was introduced in the Senate the same year. Debate on the
Senate bill centered on familiar questions: whether the Speaker and President pro
tempore were “officers” in the sense intended by the Constitution; whether
legislators were well-qualified for the chief executive’s position; whether requiring
these two to resign their congressional membership and offices before assuming the
acting presidency was fair.9 In the event, the Senate and House passed legislation
that embodied Truman’s request, but again deleted the special election provisions.
Under the act (61 Stat. 380, 3 U.S.C.§19), if both the presidency and vice
presidency are vacant, the Speaker succeeds (after resigning the speakership and his
8 In accord with contemporary practice, the House of Representatives elected in November,
the Senate had convened on March 10, but primarily to consider President Garfield’s cabinet
and other nominations.
9 Feerick, From Failing Hands, pp. 207-208.
House seat).10 If there is no Speaker, or if he does not qualify, the President Pro
Tempore succeeds, under the same requirements. If there is neither a Speaker nor
President Pro Tempore, or if neither qualifies, then cabinet officers succeed, under
the same conditions as applied in the 1886 act (see Table 3 for departmental order
in the line of succession). Any cabinet officer acting as President under the act may,
however, be supplanted by a “qualified and prior-entitled individual” at any time.11
This means that if a cabinet officer is serving due to lack of qualification, disability,
or vacancy in the office of Speaker or President Pro Tempore, and, further, if a
properly qualified Speaker or President Pro Tempore is elected, then they may
assume the acting presidency, supplanting the cabinet officer. The Presidential
Succession Act of 1947 has been regularly amended to incorporate new cabinet-level
departments into the line of succession, and remains currently in force.
The 25th Amendment and Current Procedures
The 1963 assassination of President John F. Kennedy helped set events in
motion that culminated in the 25th Amendment to the Constitution, a key element in
current succession procedures. Although Vice President Lyndon B. Johnson
succeeded without incident after Kennedy’s death, it was noted at the time that
Johnson’s potential immediate successor, House Speaker John W. McCormack, was
71 years old, and Senate President Pro Tempore Carl T. Hayden was 86 and visibly
frail. In addition, many observers believed that a vice presidential vacancy for any
length of time constituted a dangerous gap in the nation’s leadership during the Cold12
War, an era of international tensions and the threat of nuclear war. It was widely
argued that there should be a qualified Vice President ready to succeed to theth
presidency at all times. The 25 Amendment, providing for vice presidential
vacancies and presidential disability, was proposed by the 89th Congress in 1965 and13
approved by the requisite number of states in 1967.
The 25th Amendment is the cornerstone of contemporary succession procedures.
Section 1 of the amendment formalized traditional practice by declaring that, “the
Vice President shall become President” if the President is removed from office, dies,
or resigns. Section 2 empowered the President to nominate a Vice President
whenever that office is vacant. This nomination must be approved by a simple
majority of Members present and voting in both houses of Congress. Sections 3 and14
10 This requirement was included because the Constitution (Article I, Section 6, clause2)
expressly states that “ ... no person holding any Office under the United States, shall be a
Member of either House during his Continuance in Office.”
11 3 U.S.C. 19 (d)(2).
12 Following President Kennedy’s death, the vice presidency remained vacant for 14 months,
until Vice President Hubert H. Humphrey was sworn in on Jan. 20, 1965.
13 For additional information on presidential tenure, see CRS Report RS20827, Presidential
and Vice Presidential Terms and Tenure, by Thomas H. Neale.
14 For additional information on presidential disability, see CRS Report RS20260,
Presidential Disability: An Overview, by Thomas H. Neale.
Any Vice President who succeeds to the presidency serves the remainder of the
term. Constitutional eligibility to serve additional terms is governed by the 22nd
Amendment, which provides term limits for the presidency. Under the amendment,
if the Vice President succeeds after more than two full years of the term have
expired, he is eligible to be elected to two additional terms as President. If, however,
the Vice President succeeds after fewer than two full years of the term have expired,
the constitutional eligibility is limited to election to one additional term.
Section 2 of the 25th Amendment has been invoked twice since its ratification:
in 1973, when Representative Gerald R. Ford was nominated and approved to
succeed Vice President Spiro T. Agnew, who had resigned, and again in 1974, when
the former Governor of New York, Nelson A. Rockefeller, was nominated and
approved to succeed Ford, who had become President when President Richard M.
Nixon resigned (see Table 2). While the 25th Amendment did not supplant the order
of succession established by the Presidential Succession Act of 1947, its provision
for filling vice presidential vacancies renders recourse to the Speaker, the President
Pro Tempore, and the cabinet unlikely, except in the event of an unprecedented
Presidential Succession in the Post-9/11 Era
The events of September 11, 2001 and the prospect of a “decapitation” of the
U.S. government by an act of mass terrorism have led to a reexamination of many
previously long-settled elements of presidential succession and continuity of
government on the federal level.15 A number of proposals to revise the Successionth
Act of 1947 were introduced in the 108 Congress. Some were in the nature of
“housekeeping” legislation; that is, they proposed to insert the office of Secretary of
the Department of Homeland Security into the line of succession, as has been done
in the past when new cabinet departments are created by Congress. Others proposed
more complex changes in the legislation. The growth of concern over succession
issues in the wake of 9/11 was further reflected in the fact that the Senate
Committees on Rules and Administration and the Judiciary held a joint informational
hearing on September 16, 2003, and the House Judiciary Committee’s Subcommittee
on the Constitution held a hearing on October 6, 2004. At both hearings, a wide
range of points of view and legislative proposals was examined.
The question of continuity of government in the executive branch is also being
addressed by a non-governmental organization, the Continuity of Government
Commission, sponsored by the American Enterprise Institute of Washington, D.C.
For additional information on the commission and its activities, consult:
[ http://www.continuityofgovernment.org/ home.html] .
Succession Issues. Several issues dominate current discussions over
revising the order of presidential succession. Some are “hardy perennials” that have
15 For additional information on continuity of government issues, se CRS Report RS21089,
Continuity of Government: Current Federal Arrangements and the Future, by Harold C.
risen in every debate on succession law, and have been cited earlier in this report;
others relate more directly to elevated concerns over continuity of government.
Constitutional Legitimacy. There is no question as to Congress’s
constitutional ability to provide for presidential succession. This power is directly
granted by Article II, Section 1, clause 6, as modified by the 25th Amendment, as
noted earlier in this report. What the Constitution means by the word “Officer”,
however, has been perhaps the most durable element in the succession debate over
time. The succession acts of both 1792 and 1947 assumed that the language was
sufficiently broad as to include officers of Congress, the President Pro Tempore of16
the Senate and the Speaker of the House of Representatives. Some observers assert
that these two congressional officials are not officers in the sense intended by the
Constitution, and that the 1792 act was, and the 1947 act is, constitutionally
questionable. Attorney Miller Baker explained this hypothesis in his testimony
before hearings held jointly by the Senate Committees on the Judiciary Committee
and on Rules and Administration in 2003:
The Constitution is emphatic that members of Congress are not “Officers of the
United States.” The Incompatibility Clause of Article I, Section 6, clause 2
provides that “no Person holding any Office under the United States, shall be a
Member of either House during his Continuance in Office.” In other words,
members of Congress by constitutional definition cannot be “Officers” of the17
This point was raised in congressional debate over both the Succession Act of 1792
and that of 1947. In the former case, opinion appears to have been divided: James
Madison (arguably the single most formative influence on the Constitution, and a
serving Representative when the 1792 act was debated) held that officers of Congress
were not eligible to succeed. Other Representatives who had also served as delegates
to the Constitutional Convention were convinced to the contrary.18 In addition,
political issues also contributed to the debate in 1792. Fordham University Law
School Dean John D. Feerick, writing in From Failing Hands: The Story of
Presidential Succession, noted that the Federalist-dominated Senate insisted on
inclusion of the President Pro Tempore and the Speaker, and excluded the Secretary
of State, largely because of its distrust of Thomas Jefferson, who was Secretary of
State and leader of the Anti-Federalists, a group that later emerged as the Jeffersonian
Republican, or Democratic Republican, Party.19
The constitutional legitimacy of the Speaker and the President Pro Tempore as
potential successors to the President and Vice President recurred during debate on the
16 The 1792 act specified this order of succession; the 1947 act reversed the order, placing
the Speaker of the House first in line, followed by the President Pro Tempore.
17 W. Miller Baker, Testimony before the Senate Committees on the Judiciary and Rules and
Administration, Sept. 16, 2003, p.8; available at [http://judiciary.senate.gov/
print_testimony.cfm?id=914&wit_id=2606], visited Feb. 25, 2004. Baker’s testimony cites
additional supporting arguments for his assertion at considerable length.
18 Feerick, From Failing Hands, p. 59.
19 Ibid., pp. 60-61.
passed by the Second Congress, which presumably had first-hand knowledge of
original intent in this question, was buttressed as an argument by the Supreme
Court’s decision in Lamar v. United States.20
Professor Howard Wasserman, of the Florida International University School
of Law, introduced another argument in support of the Speaker’s and President Pro
Tempore’s inclusion in the order of succession in his testimony before the 2003 joint
hearing held by the Senate Judiciary Committee and the Committee on Rules and
The Succession Clause [of the Constitution] provides that “Congress may
by Law provide for the Case of Removal, Death, Resignation or Inability, both
of the President and the Vice President, declaring what Officer shall then act as
President and such Officer shall act accordingly.” ... This provision refers to
“officers,” unmodified by reference to any department or branch. Elsewhere, the
Constitution refers to “Officers of the United States” or “Officers under the
United States” or “civil officers” in contexts that limit the meaning of those
terms only to executive branch officers, such as cabinet secretaries.
The issue is whether the unmodified “officer” of the Succession Clause has
a broader meaning. On one hand, it may be synonymous with the modified uses
of the word elsewhere, all referring solely to executive branch officials, in which
case the Speaker and the President Pro Tem cannot constitutionally remain in the
line of succession. On the other hand, the absence of a modifier in the
Succession Clause may not have been inadvertent. The unmodified term may be
broader and more comprehensive, covering not only executive-branch officers,
but everyone holding a position under the Constitution who might be labeled an
officer. This includes the Speaker and President Pro Tem, which are identified21
in Article I as officers of the House and Senate, respectively.
Given the diversity of opinion on this question, and the continuing relevance of
historical practice and debate, the issue of constitutional legitimacy remains an
important element of any congressional effort to amend or supplant the Succession
Act of 1947.
Democratic Principle and Party Continuity. These interrelated issues
collectively comprise what might be termed the political aspect of presidential
succession. The first, democratic principle, was perhaps the dominant factor
contributing to the passage of the 1947 succession act. Simply stated, it is the
assertion that presidential and vice presidential succession should be settled first on
popularly elected officials, rather than the appointed members of the cabinet, as was
20 241 U.S. 103 (1916). According to Feerick, “ ... the Supreme Court held that a member
of the House of Representatives was an officer of the government within the meaning of a
penal statute making it a crime for one to impersonate an officer of the government.”
Feerick, From Failing Hands, p. 206.
21 Howard M. Wasserman, Testimony before the Senate Committees on the Judiciary and
Rules and Administration, September 16, 2003, p. 7. Available at
[http://judiciary.senate.gov/print_testimony.cfm?id=914&wit_id=2605], visited February
the case under the 1886 act. According to Feerick, the 1886 act’s provisions aroused
criticism not long after Vice President Harry Truman became President on the death
of Franklin D. Roosevelt.22 President Truman responded less than two months after
succeeding to the presidency, when he proposed to Congress the revisions to
succession procedures that, when amended, eventually were enacted as the
Succession Act of 1947. The President explained his reasoning in his special
message to Congress on the subject of succession to the presidency:
... by reason of the tragic death of the later President, it now lies within my power
to nominate the person who would be my immediate successor in the event of my
own death or inability to act. I do not believe that in a democracy this power
should rest with the Chief Executive. In so far as possible, the office of the
President should be filled by an elective officer. There is no officer in our
system of government, besides the President and Vice President, who has been
elected by all the voters of the country. The Speaker of the House of
Representatives, who is elected in his own district, is also elected to be the
presiding officer of the House by a vote of all the Representatives of all the
people of the country. As a result, I believe that the Speaker is the official in the
Federal Government, whose selection next to that of the President and Vice23
President, can be most accurately said to stem from the people themselves.
Conversely, critics of this reasoning assert that the Speaker, while chosen by a
majority of his peers in the House, has won approval by the voters only in his own
congressional district. Further, although elected by the voters in his home state, the
President Pro Tempore of the Senate serves as such by virtue of being the Senator of24
the majority party with the longest tenure.
Against the case for democratic succession urged by President Truman, the
value of party continuity is asserted by some observers. The argument here is that
a person acting as President under these circumstances should be of the same
political party as the previous incumbent, in order to assure continuity of the political
affiliation, and, presumably, the policies, of the candidate chosen by the voters in the
last election. According to this reasoning, succession by a Speaker or President Pro
Tempore of a different party would be a reversal of the people’s mandate that would
be inherently undemocratic. Moreover, they note, this possibility is not remote: since
passage of the Succession Act of 1947, the nation has experienced “divided
government,” that is, control of the presidency by one party and either or both houses
of Congress by another, for 35 of the 57 intervening years. As Yale University
Professor Akhil Amar noted in his testimony at the 2003 joint Senate committee
hearing, “... [the current succession provisions] can upend the results of a Presidential
election. If Americans elect party A to the White House, why should we end up with
22 Feerick, From Failing Hands, pp. 204-205.
23 U.S. President, Truman, Public Papers of the Presidents of the United States [:] Harry S
Truman, 1945 (Washington: GPO, 1961), p. 129.
24 The President Pro Tempore is elected by the whole Senate, but this office is customarily
filled only by the Senator of the majority party who has served longest; thus, the act of
election is arguably a formality.
party B?”25 At the same hearing, another witness argued that, “This connection to the
President ... provides a national base of legitimacy to a cabinet officer pressed to act
as president. The link between cabinet officers and the President preserves some
measure of the last presidential election, the most recent popular democratic
statement on the direction of the executive branch.”26
Efficient Conduct of the Presidency. Some observers also question the
potential effect on conduct of the presidency if the Speaker or President Pro Tempore
were to succeed. Would these persons, whose duties and experience are essentially
legislative, have the skills necessary to serve as chief executive? Moreover, it is
noted that these offices have often been held by persons in late middle age, or even
old age, whose health and energy levels might be limited.27 As Miller Baker noted
in his testimony before the 2003 joint committee hearings, “... history shows that
senior cabinet officers such as the Secretary of State and the Secretary of Defense are
generally more likely to be better suited to the exercise of presidential duties than
legislative officers. The President pro tempore, traditionally the senior member of
the party in control of the Senate, may be particularly ill-suited to the exercise of
presidential duties due to reasons of health and age.”28
Conversely, it can be noted that the Speaker, particularly, has extensive
executive duties, both as presiding officer of the House, and as de facto head of the
extensive structure of committees, staff, and physical installations that comprise the
larger entity of the House of Representatives. Moreover, it can be argued that the
speakership has often been held by men of great judgment and ability, e.g., Sam
Rayburn, Nicholas Longworth, Joseph Cannon, and Thomas Reed.
“Bumping” or Supplantation. This question centers on the 1947
Succession Act provision that officers acting as President under the act do so only
until the disability or failure to qualify of any officer higher in the order of succession
is removed. If the disability is removed, the previously entitled officer can supplant
(“bump”) the person then acting as President. For instance, assuming the death,
disability, or failure to qualify of the President, Vice President, the Speaker, the29
President Pro Tempore, or a senior cabinet secretary is acting as President.
Supplantion could take place under any one of several scenarios.
25 Akhil Amar, Testimony before the Senate Committees on the Judiciary and Rules and
Administration, Sept. 16, 2003, p. 2. Available at [http://judiciary.senate.gov/
print_testimony.cfm?id=914&wit_id=2603], visited Feb. 25, 2004.
26 Howard M. Wasserman, Testimony, p. 4.
27 Most often cited is the example of Speaker John McCormick and President Pro Tempore
Carl Hayden, who were first and second in line of presidential succession for 14 months
following the assassination of President John Kennedy in 1963. Rep. McCormick was 71
at the time of the assassination, and Sen. Hayden was 86, and visibly frail.
28 Miller Baker, Testimony, p. 11.
29 “Senior cabinet secretary” or “officer” in this section refers to the secretary of the senior
executive department, under the Succession Act of 1947, as amended.
!Death of the President, Vice President, Speaker and President Pro
Tempore: the senior cabinet secretary is acting as President. The
House elects a new Speaker, who, upon meeting the requirements,
i.e., resigning as a House Member and as Speaker, then “bumps” the
cabinet secretary, and assumes the office of Acting President. The
President Pro Tempore serving as Acting President could be
similarly bumped by a newly-elected Speaker. Both persons would
be out of a job under this scenario: the President Pro Tempore, by
virtue of having resigned as Member and officer of Congress in
order to become Acting President,30 and the senior cabinet secretary,
by virtue of the fact that, under the act, “The taking the oath of office
... [by a cabinet secretary] shall be held to constitute his resignation
from the office by virtue of the holding of which he qualifies to act
!Disability of the President and Vice President: the Speaker is Acting
President. Either the President or Vice President could supplant
after recovering, but the Speaker, or the President Pro Tempore,
should that officer be acting, would be out of a job, due to the
requirements noted above.
!Failure to Qualify of the Speaker or President Pro Tempore: the
President and Vice President are disabled, or the offices are vacant.
The Speaker and the President Pro Tempore decline to resign their
congressional membership and offices, and the acting presidency
passes to the senior cabinet officer. At some point, the Speaker or
the President Pro Tempore decides to claim the acting presidency,
resigns, and “bumps” the serving cabinet secretary. The same
scenario could occur to a President Pro Tem supplanted by the
Critics assert that the supplantation provisions could lead to dangerous instability in
the presidency during a time of national crisis:
Imagine a catastrophic attack kills the president, vice-president and congressional
leadership. The secretary of state assumes the duties of the presidency. But
whenever Congress elects a new Speaker or president pro tem, that new leader
may ‘bump’ the secretary of state. The result would be three presidents within32
a short span of time.
Moreover, as noted previously, any person who becomes acting President must resign
his previous position, in the case of the Speaker and President Pro Tempore, or have
his appointment vacated by the act of oath taking. It is certainly foreseeable that
public officials might hesitate to forfeit their offices and end their careers before
taking on the acting presidency, particularly if the prospect of supplantation loomed.
30 3 U.S.C. § 19 (b).
31 3 U.S.C. § 19 (d)(3).
32 Howard M. Wasserman, Testimony, p. 8.
The “bumping” question has been used by critics of legislative succession as an
additional argument for removing the Speaker and President Pro Tempore from the
line of succession. Another suggested remedy would be to amend the Succession Act
of 1947 to eliminate the right of “prior entitled” individuals to supplant an acting
President who is acting due to a vacancy in the office of President and Vice
President. Relatedly, other proposals would amend the law to permit cabinet officials
to take a leave of absence from their departments while serving as acting President
in cases of presidential and vice presidential disability. They could thus return to
their prior duties on recovery of either the President and Vice President, and their
services would not be lost to the nation, nor would there be the need to nominate and
confirm a replacement.
Succession During Presidential Campaigns and Transitions. The
related issue of succession during presidential campaigns and during the transition
period between elections and the inauguration has been the subject of renewed
interest since the terrorist attacks of September 11, 2001. The salient elements of this
issue come into play only during elections when an incumbent President is retiring,
or has been defeated, and the prospect of a transition between administrations looms,
but uncertainties about succession arrangements during such a period have been
cause for concern among some observers. Procedures governing these eventualities
depend on when a vacancy would occur.
Between Nomination and Election. This first contingency would occur if
there were a vacancy in a major party ticket before the presidential election. This
possibility has been traditionally covered by political party rules, with both the
Democrats and Republicans providing for replacement by their national33
committees. For example, in 1972, the Democratic Party filled a vacancy when
vice presidential nominee Senator Thomas Eagleton resigned at the end of July, and
the Democratic National Committee met on August 8 of that year to nominate R.
Sargent Shriver as the new vice presidential candidate.
Between the Election and the Meeting of the Electors. The second would
occur in the event of a vacancy after the election, but before the electors meet to cast
their votes in December. This contingency has been the subject of speculation and
debate. Some commentators suggest that, the political parties, employing their rules
providing for the filling of presidential and vice presidential vacancies, would
designate a substitute nominee. The electors, who are predominantly party loyalists,
would presumably vote for the substitute nominee. Given the unprecedented nature
of such a situation, however, confusion, controversy, and a breakdown of party
discipline among the members of the electoral college might also arise, leading to34
further disarray in what would already have become a problematical situation.
33 See The Republican National Committee Rules, 2000, Rule No. 9; The Charter and
ByLaws of the Democratic Party of the U.S., Sept. 25, 1999, Art. III, § 1(c).
34 U.S. Congress, Senate, Committee on the Judiciary, Subcommittee on the Constitution,
Presidential Succession Between the Popular Election and the Inauguration, hearing, 103rdnd
Cong., 2 sess., Feb. 2, 1994 (Washington: GPO, 1995), pp. 12-13.
Between the Electoral College Vote and the Electoral Vote Count by
Congress. A third contingency would occur if there were a vacancy in a
presidential ticket during the period between the time when the electoral votes are
cast (Monday after the second Wednesday in December) and when Congress counts
and certifies the votes (January 6). The succession process for this contingency turns
on when candidates who have received a majority of the electoral votes become
President-elect and Vice President-elect. Some commentators doubt whether an
official President- and Vice President-elect exist prior to the electoral votes being
counted and announced by Congress on January 6, maintaining that this is a35
problematic contingency lacking clear constitutional or statutory direction. Others
assert that once a majority of electoral votes has been cast for one ticket, then the
recipients of these votes become the President- and Vice President-elect,
notwithstanding the fact that the votes are not counted and certified until the36th
following January 6. If so, then the succession procedures of the 20 Amendment,
noted earlier in this report, would apply as soon as the electoral votes were cast;
namely, if the President-elect dies, then the Vice President-elect becomes the
President-elect. This point of view receives strong support from the language of theth
House committee report accompanying the 20 Amendment. Addressing the
question of when there is a President elect, the report states:
It will be noted that the committee uses the term “President elect” in its generally
accepted sense, as meaning the person who has received the majority of electoral
votes, or the person who has been chosen by the House of Representatives in the
event that the election is thrown into the House. It is immaterial whether or not
the votes have been counted, for the person becomes the President elect as soon37
as the votes are cast.
Between the Electoral Vote Count and Inauguration. As noted previously,
the 20th Amendment covers succession in the case of the President-elect, providing38
that in case of his death, the Vice President-elect becomes President-elect. Further,
a Vice President-elect succeeding under these circumstances and subsequentlyth
inaugurated President would nominate a Vice President under provisions of the 25
Amendment. A major concern that has risen about this period since the terrorist
attacks of September 11, 2001, centers the order of succession under the Succession
Act of 1947. What might happen in the event of a mass terrorist attack during or
shortly after the presidential inaugural? While there would be a President, Vice
President, Speaker, and President Pro Tempore during this period, who would step
forward in the event an attack removed these officials? This question takes on
additional importance since the Cabinet, an important element in the order of
succession, is generally in a state of transition at this time. The previous
administration’s officers have generally resigned, while the incoming
35 Ibid., pp. 39-40.
36 Ibid., p. 12.
37 U.S. Congress, House, Proposing an Amendment to the Constitution of the United States,
report to accompany S.J.Res. 14, 72nd Cong., 1st sess., Rept. 345 (Washington?, GPO?:
38 Whether this provision would also cover disability or resignation is a question that merits
administration’s designees are usually in the midst of the confirmation process. It is
not impossible to envision a situation in which not a single cabinet officer will have
been confirmed by the Senate under these circumstances, thus raising the prospect
of a de facto decapitation of the executive branch. This concern has led to several
proposals in the 108th Congress.
Proposed Legislation in the 108th Congress
Succession-related legislation introduced in the 108th Congress fell into two
basic categories. First, “perfecting” legislation sought to include the Secretary of
Homeland Security in the existing order of succession, but did not otherwise provide
major changes in the Succession Act of 1947. Second were proposals that sought to
make broader changes to the existing law.
Revising the Order of Succession to Include the Secretary of
Homeland Security. Perhaps of most immediate interest in the case of
presidential succession was the establishment in 2002 of the Department of
Homeland Security (DHS). The secretaries of newly-created cabinet-level
departments are not automatically included in the order of succession; this is
normally accomplished by an appropriate provision in the legislation authorizing the
new department.39 In some instances, however, the secretary’s inclusion has been
omitted from the authorizing act, but is accomplished later in “perfecting” legislation.
This omission occurred in the act establishing the DHS in the 107th Congress (P.L.
107-296), which did not incorporate the secretary of the new department in the line
of presidential succession.
S. 148 and H.R. 1354. These two 108th Congress bills had a direct purpose:
to include the Secretary of DHS in the line of presidential succession. S. 148 was
introduced on January 13, 2003, by Senator Michael DeWine,40 and a companion bill,
H.R. 1354, was introduced in the House on March 19, 2003, by Representative Tom
Davis.41 Both bills departed from tradition, however, by proposing to place the
Secretary of Homeland Security in the line of succession directly following the
Attorney General. In this position, the secretary would have been eighth in line toth
succeed the President, rather than 18, at the end of the order, following the Secretary
of Veterans Affairs. This realignment would have had historical significance, as the
four offices that would immediately precede the Secretary of Homeland Security
constitute the original cabinet, as established between 1789 and 1792 during the42
presidency of George Washington, sometimes referred to as the “big four.”
39 See 3 U.S.C. § 19 “Amendments” for examples.
40 Sen. Dodd subsequently co-sponsored.
41 Rep. Platts cosponsored H.R. 1354.
42 They are, in order of departmental seniority, the Secretaries of State, the Treasury, and
Defense, and the Attorney General. The Secretary of Defense supplanted the Secretary of
War when the Department of Defense was established in 1947. All attorneys general served
in the cabinet beginning in 1792, although the Department of Justice was not established
This departure from tradition derived from heightened concern over the question
of continuity of government.43 It was argued that the proposed placement of the DHS
secretary will have at least two advantages: first, the Department of Homeland
Security was one of the largest and most important executive departments, with many
responsibilities directly affecting the security and preparedness of the nation. Both
its size and crucial role are cited as arguments for placing the Secretary of DHS high
in the order of succession. Second, the Secretary of Homeland Security would have
critically important responsibilities in these areas, and might be expected to possess
the relevant knowledge and expertise that arguably justify placing this official ahead
of 10 secretaries of more senior departments, particularly in the event an
unprecedented disaster were to befall the leadership of the executive branch.
On the other hand, the bill was open to criticism on the argument that was an
exercise in undue alarmism, and that placing the Secretary of Homeland Security
ahead of the secretaries of more senior departments might set a questionable
precedent, by seeming to elevate the office to a sort of “super cabinet” level that
would arguably be inconsistent with its legal status.
S. 148 was the apparent choice for bicameral action for these companion bills.
Introduced on January 13, 2003, and passed the Senate on June 27, 2003, without
amendment, by unanimous consent. It was later received in the House, and referred
to Subcommittee on the Constitution of the House Judiciary Committee. H.R. 1354
was referred to the same House committee and subcommittee, but no subsequent
action was taken on either bill during the 108th Congress.
Revisiting the Succession Act of 1947. Several other bills introduced inth
the 108 Congress called for substantive changes in the order of succession beyond
the Vice President. Some of the concerns expressed by critics of the 1947 Act were
reflected in these proposals, which are listed by chamber and in order of introduction,
and are examined below.
H.R. 2319. This bill, introduced on June 4, 2003 by Representative
Christopher Cox and others44 sought to place the Secretary of DHS in the order of
succession after the Attorney General. Section 2 of H.R. 2319 went beyond S. 148
and H.R. 1354 in several aspects. First, it clarified existing language in the 1947 Act
by changing the language concerning referring to succession from “the Speaker of the
House of Representatives” and the “President pro tempore of the Senate” to “the
person holding the office of Speaker of the House of Representatives at the time such
event, inability, or failure occurs” and “the person holding the office of President pro
tempore at such time.”
Second, it sought to amend 3 U.S.C. §19 (d)(2) to remove the requirement that
a cabinet officer acting as President would be “bumped” or supplanted “by a
43 For additional information on the issue of continuity of government, please consult CRS
Report RS21089, Continuity of Government: Current Federal Arrangements and the Future,
by Harold C. Relyea.
44 Cosponsors include Reps. Baird, Camp, Chabot, Frost, Jackson-Lee of Texas, Shadegg,
qualified and prior entitled official,”45 except in cases in which the person is acting
as President due to the inability of the President or Vice President. In other words,
a cabinet officer acting as President would not be displaced by a newly qualified
Speaker of the House, or a newly qualified President Pro Tempore. If, however, the
officer’s service is based on the inability of the President or Vice President, then the
officer would be superseded by the removal of the disability of the President or Vice
This provision addressed several of the issues cited earlier in this report that
have been noted by critics of the Succession Act of 1947. First, by eliminating the
displacement of a cabinet officer acting as President, except in cases of presidential
or vice presidential inability, it would remove a potential source of instability: once
installed as acting President, the cabinet officer would remain in this position for the
balance of the presidential term, unless, as noted above, the officer is acting due to
the presumably temporary inability of the President or Vice President. Further, under
these circumstances it would almost certainly remove the possibility of a President
and Vice President being succeeded by an acting President of a different party, which
has proved to be an issue of continuing concern since passage of the Succession Act
of 1947.46 Finally, it would confer the acting presidency on a person whose most
recent assignment has been executive and managerial, rather than legislative. This
would, some suggest, provide a presumably experienced executive who would act as
President. On the other hand, some might argue that continuing a cabinet officer as
acting President after a Speaker or President Pro Tempore had qualified would
violate the original intention of the Succession Act, which was to ensure that elected
rather than appointed officers would succeed to the presidency. It can be further
argued that experience as a Member of either house of Congress and service as
Speaker or President Pro Tempore would not necessarily be inconsistent with
executive experience and ability.
Section 3 proposed to change the current provisions of 3 U.S.C. § 19(d)(3),
which specify that any cabinet officer who acts as President automatically resigns
from the cabinet upon taking the presidential oath of office. Instead, such officers
would not automatically resign if they were acting due “in whole or in part” to the
“inability of the President or the Vice President.” This would obviate the automatic
resignation of individuals serving during temporary incapacity of the President or
Vice President, and permit a cabinet officer serving under such circumstances to
return to the Cabinet.
Section 4 was a technical adjustment to 3 U.S.C. § 19(e) which sought to clarify
the Succession Act by requiring that cabinet officers, in order to be eligible to
succeed, must have been confirmed in their position with the advice and consent of
the Senate, thus eliminating acting cabinet officers from eligibility under the act.
45 See above at p. 4.
46 This assumption is grounded in the tradition that Presidents almost always choose
members or supporters of their own political party for cabinet positions. There have been
exceptions to this practice; for instance, Secretary of Transportation Norman Mineta servedthth
as a Democratic Representative in the 94 through 104 Congresses (1975-1996), and as
Secretary of Commerce in the Clinton Administration (2000-2001).
H.R. 2319 was referred to the House Judiciary Committee on June 4, 2003, and
to its Subcommittee on the Constitution on June 25. No further action was taken on
H.R. 2749, The Presidential Succession Act of 2003. H.R. 2749,
introduced on July 15, 2003, by Representative Brad Sherman and others,47 would
have constituted a major change in provisions relating to presidential succession. It
sought to empower the President to choose an officer among specified congressional
leadership positions who would be designated to succeed in case of simultaneous
vacancies, disqualifications, or inability in the offices of President and Vice
President. This would have had the effect of eliminating the possibility that a
President and Vice President would be succeeded by congressional leaders of a
different party than their own. At the same time, the bill would have continued the
tradition established by the Succession Act of 1947 that elected, rather than appointed
officials, i.e., the Cabinet, would continue to be first in line to succeed, following the
Under the bill’s provisions, the President was to submit to the Clerk of the
House of Representatives his choice of either the office of the Speaker, or the office
of the minority leader as designated primary office of succession. Similarly, the
President would submit to the Secretary of the Senate his designation of the office
of majority or minority leader of the Senate as the secondary successor under the act.
Thus, the President would have the option of choosing a member of his own political
party as his potential successor under such circumstances.
This section of the bill dealing with the Senate contained a further significant
change from existing procedures in that it sought to establish the person holding the
office of majority or minority leader of the Senate, rather than the President Pro
Tempore of the Senate, as secondary successor. The intention here was arguably that
this change would place a younger and perhaps more vigorous Senator of the
President’s party in line of succession, rather than the President Pro Tempore, who
is customarily the senior Senator of the majority party. In common with the bill’s
House-related provisions, it would also have ensured that the President and Vice
President would be succeeded temporarily or permanently, depending on conditions,
by a member of the political party of their choosing. This would safeguard party
continuity in the presidency, but would not assure it, since a President would be free
to choose from among both parties. It is arguable that a President might choose a
House or Senate officer from a party other than his own as a demonstration of
A question could be raised, however, as to the constitutional status of the House
minority leader and the majority and minority leaders of the Senate. Are these
officials “officers” of Congress? While a change in House and Senate rules to
establish these positions as offices would appear to eliminate this hurdle, the
47 Cosponsors include Reps. Baird, Conyers, and Fatah.
perennial question would remain as to whether any officers of Congress are eligible
to succeed under the Constitution.48
In common with H.R. 2319, H.R. 2749 proposed making the succession of these
officers permanent, for the balance of the presidential term, unless they were founded
on the disability or failure to qualify of a President or Vice President. In case of the
former, then the acting President would serve only until the disability of the President
or Vice President was removed. In case of the latter contingency, he would serve
until a President or Vice President qualifies.49
H.R. 2479 was referred to the House Judiciary Committee’s Subcommittee on
the Constitution on September 4, 2003. No further action was taken on the proposal
during the 108th Congress.
H.Res. 775 and S.Con.Res. 89. These resolutions, introduced respectively
by Representative Brad Sherman, on September 14, 2004, and Senators John Cornyn
and Trent Lott on February 12, 2004, addressed the desirability, from the standpoint
of continuity of government, of having the officers comprising a President-elect’s
line of succession confirmed and in place by the time of the inauguration. They
recommended that a President whose term is coming to an end, and who will not
succeed himself, should submit his successor’s nominations for offices that fall
within the line of succession to the Senate for its consideration before his term ends.
They further recommended that the confirmation process for such officers should be
completed by the Senate, insofar as possible, between January 3, the date on which
the new Congress assembles, unless otherwise arranged, and January 20, the date on
which the incumbent President’s term ends. Finally they urged the incumbent
President to sign and deliver commissions for those officers whose nominations have
been approved on January 20, so that they will be in place when the President-elect
Traditionally, Presidents-elect announce their Cabinet choices during the
transition period that normally takes place between election day and January 20 of
the following year, when the newly-elected President actually assumes office. Also
48 See discussion of this question earlier in this report under “constitutional legitimacy.”
49 The question of “failure to qualify” relates generally to the presidential election process.
In theory, it could mean that neither of the persons winning a majority of electoral votes for
President and Vice President meets the constitutional qualifications of the two offices, i.e.,
natural born citizenship, 35 years of age, and14 years of continual residence in the United
States, but this contingency is extremely unlikely. The more likely, but still remote,
situation would be in the event neither candidate wins a majority of electoral votes, and that
the House and Senate are unable to assemble the majority of votes needed in the contingent
election process to choose either a President or Vice President between the time they meet
to count electoral votes (January 6, unless otherwise designated) and January 20, when the
previous incumbents’ terms expire. In such a case, there would be simultaneous vacancies
in both offices due to a “failure to qualify.” For further information on the contingent
election process, please consult CRS Report RS20300, Election of the President and Vice
President by Congress: Contingent Election, by Thomas H. Neale.
during this period, incumbent Presidents’ cabinet officers traditionally submit their
resignations, generally effective on inauguration day. Although investigations of and
hearings on cabinet nominees for an incoming administration are often under way
before the changeover, official nominations by a new President, and subsequent
advice and consent by the Senate, cannot occur until after the new President has
assumed office. Frequently, this process continues for some weeks, or longer in the
case of controversial or contested nominations, so that the full Cabinet may not be
sworn until well after the inauguration. Representative Sherman, Senators Cornyn
and Lott and other observers viewed this gap, particularly in the confirmation and
swearing-in of cabinet officers included in the line of succession, as a threat to
continuity in both the presidency and in executive branch management.
One advantage conferred by this proposal was that cabinet secretaries, unlike
elected officials, do not serve set terms of office which expire on a date certain. If
the level of interpersonal and bipartisan cooperation envisaged in the resolution could
be attained, an incoming President might assume office on January 20 with a full
Cabinet already sworn and installed, thus reducing the potential for disruption of the
executive branch by a terrorist attack. The process recommended by H.Res. 775 and
S.Con.Res. 89 had the additional advantage of being able to be implemented without
legislation or a constitutional amendment, had they been passed. They would make
it more likely that every incoming President would have a cabinet nominated, vetted,
and sworn on January 20. In addition to the national security-related advantage this
would confer, it would arguably provide an impetus to streamlining the sometimes
lengthy and contentious transition and appointments process faced by all incoming
administrations. It would also, however, face substantial obstacles. It would require
high levels of good will and cooperation between incumbent Presidents and their
successors. Moreover, it would impose a sizeable volume of confirmation-related
business on both the lame duck and newly-sworn Congresses during the 10 weeks
following a presidential election. During this period, the expiring Congress
traditionally adjourns sine die, while the new Congress generally performs only
internal business and counts the electoral votes between its own installation on
January 3 and the presidential inauguration.
H. Res.775 was referred to the House Committee on the Judiciary, and
S.Con.Res. 89 was referred to the Senate Committee on Rules and Administration
on February 12, 2004. No further action was taken on either resolution.
S.Res. 419. This resolution, introduced by Senator John Cornyn on July 22,
2004, was an expanded version of S.Con.Res. 89, incorporating a preamble which
set forth the arguments in favor of the resolution and cited statutory precedents which
arguably supported its adoption.
S.Res. 419 was referred to the Committee on Rules and Administration. No
further action was taken on.
S. 2073, The Presidential Succession Act of 2004. S. 2073, which was
introduced by Senators Cornyn and Lott on February 12, 2004, essentially sought to
restore the status quo ante the Succession Act of 1947, by placing the Cabinet in first
line of succession and eliminating officers of both houses of Congress from the order
Section 1 established the title. Section 2 (a) repealed subsections (a), (b), and
(c) of Section 19 of Title 3 of the U.S. Code. This eliminated any role for the
Speaker and President Pro Tempore in presidential succession. Succession in cases
of the death, resignation, removal from office, inability, or failure to qualify would
pass directly to cabinet officers in the order in which their departments were created.
Section 2 (b) inserted the Secretary of Homeland Security in the order of succession
directly following the Attorney General. It also repealed the “bumping” or
supplantation procedure, except in cases of disability of both the President and Vice
President, and states that service as acting President by a cabinet officer does not
require the officer’s resignation from his departmental post. Section 2 (c) provided
for succession in the event that an Acting President “shall die, resign, or be removed
....” or is incapacitated. It also confirmed potential Acting Presidents must: (1) meet
constitutional qualifications for the presidency; (2) have been confirmed by the
Senate in their cabinet position; and (3) not be under impeachment by the House of
Representatives at the time they accede to the office.
This bill met many of the objections to the Succession Act of 1947 offered by
the acts’s critics by providing for cabinet succession, and eliminating both bumping
(except in cases of presidential and vice presidential disability) and the automatic
resignation provision imposed by current law on any cabinet officer who assumes the
acting presidency. It could, however, have been open to criticism on some of the
same grounds; i.e., it removed democratically-elected officials from the line of
succession in favor of appointed cabinet secretaries.
S. 2073 was referred to the Committee on Rules and Administration. No further
action has was taken on it.
Other Options for Change
Additional succession-related proposals have been offered that have not been
introduced as legislation. They seek particularly to address post-9/11 concerns over
the prospect of a “decapitation” of the U.S. government by a terrorist attack or
attacks, possibly involving the use of weapons of mass destruction.
One proposal, suggested by John C. Fortier50 at the joint Senate committee
hearings, would have Congress establish a number51 of additional federal officers
whose specific duties and function would be to be ready to assume the acting
presidency if necessary. Fortier envisions that the President would appoint them,
subject to Senate confirmation, and that obvious candidates would be governors,
former presidents, vice presidents, cabinet officers, and Members of Congress, in
other words, private citizens who have had broad experience in government. They
would receive regular briefings, and would also serve as advisors to the President.
A further crucial element is that they would be located outside the Washington, D.C.
area, in order to be available in the event of a governmental “decapitation.” Fortier
50 Dr. Fortier is executive director of the Continuity of Government Commission at the
American Enterprise Institute, non-governmental study commission identified earlier in this
51 Fortier suggests four or five officers.
further suggested that these officers should be included ahead of cabinet officers
“lower in the line of succession.”52 Although he was not more specific in his
testimony, it could be argued that these officers might be inserted after the “big four”,
i.e., the Secretaries of State, the Treasury, and Defense, the Attorney General, and,
possibly the Secretary of Homeland Security, should that officer be included at that
place, as proposed in pending legislation.
Miller Baker offered other proposals during his testimony at the September,
Under one, the President would be empowered to name an unspecified number of
state governors as potential successors. The constitutional mechanism here would
be the President’s ability to call state militias (the National Guard) into federal
service.53 Fortier argues that, by virtue of their positions as commanders-in-chief of
their state contingents of the National Guard, governors could, in effect be
transformed into federal “officers” by the federalization of the Guard.54
A second proposal by Fortier would amend the Succession Act to establish a
series of assistant vice presidents, nominated by the President, and subject to
approval by advice and consent of the Senate. These officers would be included in
the order of succession at an appropriate place. They would be classic “stand-by”
equipment: their primary function would be to be informed, prepared, and physically
safe, ready to serve as acting president, should that be required.55
Akil Amar proposed a similar measure, that the cabinet position of assistant vice
president established by law, again, nominated by the President and subject to
confirmation by the Senate. In his testimony before the September, 2003, joint
Senate committee hearings, he suggested that presidential candidates should
announce their choices for this office during the presidential campaign. This would
presumably enhance the electoral legitimacy of the assistant vice president, as voters
would be fully aware of the candidates’ choices for this potentially important office,
and include this in their voting decisions.56
A further variant was offered by Howard Wasserman during his joint Senate
committee hearing testimony. He suggested establishment of the cabinet office of
first secretary, nominated by the President and confirmed by the Senate. The first
secretary’s duties would be the same as those of the offices proposed above, with
special emphasis on full inclusion and participation in administration policies, “This
officer must be in contact with the President and the administration, as an active
52 John Fortier, Testimony before the Senate Committees on the Judiciary and Rules and
Administration, Sept. 16, 2003, p. 7. Available at[http://judiciary.senate.gov/
print_testimony.cfm?id=914&wit_id=2604], visited Feb. 25, 2004.
53 U.S. Constitution, Article II, Section 2, clause 1.
54 John Fortier, Testimony, p. 13.
56 Akil Amar, Testimony, p. 2-3.
member of the cabinet, aware of and involved in the creation and execution of public
Finally, Fortier proposed a constitutional amendment that would eliminate the
requirement that successors be officers of the United States, empowering the
President to nominate potential successors beyond the cabinet, subject to advice and
consent by the Senate. Such an amendment, he argues, would “... eliminate any
doubts about placing state governors in the line of succession, and could provide for
succession to the Presidency itself (as opposed to the acting Presidency).”58 Fortier
envisions that these persons would be “eminently qualified” to serve. As examples,
he suggested that President George W. Bush might nominate, “... former President
George H.W. Bush and former Vice President Dan Quayle, both of whom no longer
live in Washington, to serve in the line of succession. Similarly, a future Democratic
President might nominate former Vice Presidents Al Gore and Walter Mondale to
serve in the statutory line of succession.”59
Seemingly a long-settled legislative and constitutional question, the issue of
presidential and vice presidential succession in the United States has gained a degree
of urgency following the events of September 11, 2001. Old issues have been
revisited, and new questions have been asked in light of concerns over a potentially
disastrous “decapitation” of the U.S. Government as the result of a terrorist attack,
possibly by use of weapons of mass destruction. The 108th Congress did not act to
insert the office of Secretary of Homeland Security into the current line of
succession. Major revisions to current succession legislation are less likely in the
short run, although the foundations for future consideration were laid by the 2003
Senate and 2004 House hearings, which provided a forum for public discussions of
current succession provisions, their alleged shortcomings, and a wide range of
proposals for change. In the private sector, the American Enterprise Institute’s
Continuity of Government Commission is scheduled to address continuity in the
presidency, having completed studies on continuity of the Congress.
57 Howard Wasserman, Testimony, p. 6.
58 John Fortier, Testimony, p. 14
Table 1. Presidential Successions by Vice Presidents
Year President Party* Vacancy** Successor
1841William Henry HarrisonW1John Tyler
1850Zachary TaylorW1Millard Fillmore
1865Abraham LincolnR2Andrew Johnson
1881James A. GarfieldR2Chester A. Arthur
1901William McKinleyR2Theodore Roosevelt
1923Warren G. HardingR1Calvin Coolidge
1945Franklin D. RooseveltD1Harry S Truman
1963John F. KennedyD2Lyndon B. Johnson
1974Richard M. NixonR3Gerald R. Ford
* Party Affiliation:
D = Democratic
R = Republican
W = Whig
** Cause of Vacancy:
1 = death by natural causes
2 = assassination
3 = resignation
Table 2. Vice Presidential Successions Under the 25th
1973Spiro T. AgnewR1Gerald R. Ford
1974Gerald R. FordR2Nelson A. Rockefeller
* Party Affiliation:R = Republican
** Cause of Vacancy:1 = resignation
60 Prior to ratification of the 25th Amendment, the vice presidency was vacant on 16
occasions. Eight resulted when the Vice President succeeded to the presidency (see Table
1). Seven resulted from the Vice President’s death: George Clinton (Democratic Republican
— DR), 1812; Elbridge Gerry (DR), 1814; William R. King (D), 1853; Henry Wilson (R),
1875; Thomas A. Hendricks (D), 1885; Garret A. Hobart (R) 1899; and James S. Sherman
(R), 1912. One Vice President resigned: John C. Calhoun (D), in 1832.
Table 3. The Order of Presidential Succession
(under the Succession Act of 1947)
Speaker of the House of Representatives
President Pro Tempore of the Senate
Secretary of State
Secretary of the Treasury
Secretary of Defense
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