As I discussed yesterday, the Constitution lays out basic provisions of presidential succession and indicates when and how the vice president will take over if the presidency is vacant. But the Constitution leaves it to Congress to prescribe by law further successors.
Most Americans know the basic order of succession in the current Presidential Succession Act. After the vice president, the law specifies the following order of succession:
- The Speaker of the House
- The Senate Pro Tempore
- Cabinet officers in the order that the cabinet departments were created, starting with the so-called Big Four: Secretary of State, Secretary of the Treasury, Secretary of Defense, and Attorney General. Then it goes through the remainder of cabinet departments, ending with the Secretary of the Department of Homeland Security.
But through its history, America has had three presidential succession acts, which illustrate the range of possibilities that Congress could incorporate.
The first Congress didn’t pass a succession act, but the second Congress did. The line of succession after the vice president consisted of only two people — the Senate President Pro Tempore and the Speaker of the House, in that order.
This first succession act was controversial because it placed members of Congress in the line, which one of the fathers of the Constitution, James Madison, strenuously opposed on constitutional grounds. The Constitution, Madison argued, allowed Congress to specify by law which officers in the executive branch would serve in the line of succession. One textual point Madison made was that the term “Officers” in the Constitution was known by everyone to mean officers in the executive branch. By this argument, the first presidential succession act, as well as our current law, is unconstitutional because it includes members of Congress. This argument has a distinguished pedigree, stretching from Madison to many current legal scholars, most prominently Yale constitutional law scholar Akhil Amar.
Nevertheless, Congress decided to put congressional leaders in the line of succession in 1792. Why? In large part because of politics. At that early date, the outlines of our coming political parties were taking shape. The Secretary of State at the time was Thomas Jefferson, but supporters of Hamilton’s faction, what would become the Federalist Party, controlled Congress. Hamilton’s faction did not want to see Jefferson in line to become president, so they placed members of Congress in the line instead of executive branch officers.
One other notable feature of the first line of succession is that if the president and vice president both died, and the Senate Pro tempore or Speaker of the House became president, they would serve as president only for a short time until a new presidential election could be held to fill out the remainder of the term.
Congress passed the second presidential succession act because it saw real problems in the first one, especially related to having only members of Congress in the line of succession. At a couple of points in time, the first succession act left us dangerously unprotected with no one in the line of succession. Congress in this earlier era typically met in December of its first year and, therefore, there were times when Congress had not selected a Senate President Pro Tempore or House Speaker. In a couple of instances, either the president or vice president had died, leaving only the president in power with no one behind him in the line of succession.
Congress in 1886 was also persuaded by Madison’s constitutional argument and the belief that it was much smoother to transfer power within the executive branch than to bring in someone from another branch and perhaps another political party to take over the presidency.
So, Congress’s second succession act removed congressional leaders and created a line of succession that included only members of the President’s cabinet.
Vice President Harry Truman had served less than three months in office when FDR’s death thrust him into the presidency. Early in his term, Truman began thinking about presidential succession and proposed changes in the law to Congress.
Truman had spent ten years in the Senate and more than a decade in other elective office. He believed that, unlike cabinet secretaries, congressional leaders had been elected, which gave them a greater legitimacy to step into the presidency. So, the current hybrid structure was created, with the Speaker and President Pro Tempore in the line of succession followed by the cabinet members.
This change in law also removed any reference to holding a special election to fill the remainder of the term if a statutory successor takes office.
In upcoming posts, I will look at some of the problems with our current presidential succession system, including the question of constitutionality of Congress in the line of succession, the difficulty our system has if the president and vice president are both severely ill, the problem of the death of presidential candidates and of the president elect on inauguration day.