In the last two weeks of writing about continuity of government, I’ve focused primarily on how Congress might operate during the COVID-19 crisis. I’ve also touched upon what could happen if the president becomes unable to perform his or her official duties.
In the next few days, I will turn to the issue of presidential succession. Even in this time of worsening conditions of the pandemic, we don’t anticipate worst-case scenarios such as the death of the president or many of the people in the line of succession. Nonetheless, this crisis reminds us that we need to think about all of our institutions and how they would function if there were serious illnesses, deaths, or attacks on our institutions.
Questions we’ll explore this week include: What does the Constitution say about presidential succession? What is enshrined in law? And what is wrong with our presidential succession system?
The core constitutional language dealing with presidential succession is Article 2, Section 1, Clause 6:
“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”
Other provisions such as the 20th and 25th Amendments affect succession, but for now, here are a six key points about the core Article 2 language:
- The Constitution specifies that the vice president shall exercise the powers and duties of the presidency when the presidency is vacant.
- The Constitution does not specify a line of succession beyond the vice president, but leaves it to Congress to provide for a longer line of succession by law. And Congress has enacted three different succession acts over our history.
- The Constitution provides that Congress shall specify which “Officer” shall be in the line of succession. The meaning of the term “Officer” has been disputed, with some constitutional authorities (including James Madison) claiming that it refers only to executive branch officers, not members of Congress.
- The Constitution provides for presidential succession under several different circumstances:
-and, in other parts of the Constitution, the failure to qualify for the office (perhaps a failure to meet the age, natural born citizenship, or residency requirements, or perhaps a vacancy due to an unresolved presidential election).
- In the case of a disabled or incapacitated president, the Constitution envisions that the president can return to office after the disability is resolved (and the 25th Amendment makes that point more explicitly).
- The Constitution imagines the possibility of a special election to fill a vacancy in the presidency that is filled by someone other than the vice president (“until… a President shall be elected).
-Our earlier laws providing for presidential succession either required or allowed a special election to elect a new president to fill out the term and replace a temporary presidential successor such as a member of Congress or a cabinet secretary.
The Constitution provides much more clarity about presidential succession scenarios than it does about issues of congressional continuity. But much is also filled in by a law passed by Congress, and a number of holes remain unfilled.