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The Twenty-Fifth AmendmentIts Complete History and Application$

John D. Feerick

Print publication date: 2013

Print ISBN-13: 9780823252008

Published to Fordham Scholarship Online: May 2014

DOI: 10.5422/fordham/9780823252008.001.0001

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Succession Beyond the Vice Presidency

Succession Beyond the Vice Presidency

Chapter:
(p.33) 3 Succession Beyond the Vice Presidency
Source:
The Twenty-Fifth Amendment
Author(s):

John D. Feerick

Publisher:
Fordham University Press
DOI:10.5422/fordham/9780823252008.003.0003

Abstract and Keywords

This chapter discusses the various congressional enactments prescribing a line of succession beyond the vice presidency, including the 1792 law, the 1886 law, and the 1947 law. The 1947 law dictated that the Speaker of the House would succeed the Vice President, and the President pro tempore of the Senate would succeed the Vice President. Although the 1947 act has never been applied, the act’s imperfections were highlighted on several occasions when the Speaker became the heir apparent. One danger was that succession to the Speaker of the House could shift control of the White House to a different political party.

Keywords:   Speaker, Senate, succession, vacancy, legislative

Mr. Burke said, that he had consulted a gentleman skilled in the doctrine of chances, who, after considering the subject, had informed him, that there was an equal chance that such a contingency would not happen more than once in eight hundred and forty years.

ANNALS OF CONG., 1st Cong., 3d Sess. 1914 (1791)

As the framers debated the executive article, they realized that a vacancy could occur in the presidency during the course of a term. Indeed, they remembered situations in America’s past involving the death, resignation, absence, and removal of colonial governors. Fortunately, there had been procedures to handle such contingencies.1 In the royal colonies there was an office of lieutenant governor, and a provision was made for either the governor’s council or the senior councilor to assume the reins of government in the event that there was no governor or lieutenant governor. In the early history of the proprietary colonies, the governor was given the power to deputize a successor and at times exercised the power from his deathbed; later, the senior councilor was designated to act as governor in the event of a vacancy. It is of interest that the charters of Connecticut and Rhode Island provided for a governor and deputy governor elected by the people and authorized the legislature to fill a vacancy occurring in either of these offices—a power that was used on numerous occasions.

The first state constitutions adopted after the Declaration of Independence all contained provisions for dealing with executive succession. A lieutenant governor was the immediate successor in several of the colonies, the president of the governor’s council in a few, and the presiding officer of the upper house of the legislature in others. Several colonies continued the line of succession beyond the immediate (p.34) successor. For example, New York ran the line of succession from the lieutenant governor to the legislative officers, and Delaware and North Carolina from the presiding officer of the upper house to the speaker of the lower house.

This pre-Convention experience undoubtedly shaped the provisions of Article II, section 1, clause 6 of the Constitution with respect to a line of succession beyond the vice presidency. It was late in the Constitutional Convention of 1787 when Hugh Williamson declared that Congress “ought to have power to provide for occasional successors …” to the President. Accepting his suggestion, Edmund Randolph of Virginia on September 7 moved to expand the provision providing for a Vice President’s succession in the event of a President’s death, resignation, removal, absence, or inability.* At the time of Randolph’s proposal the provision simply stated:

[I]n case of his [the President’s] removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed.

Randolph’s suggested addition was:

The Legislature may declare by law what officer of the U.S. shall act as President in case of the death, resignation, or disability of the President and Vice-President; and such officer shall act accordingly until the time of electing a President shall arrive [emphasis added].2

James Madison objected that the last nine words (italicized above) would prevent the filling of a vacancy by means of a special election of the President. He suggested as an alternative the expression “until such disability be removed, or a President shall be elected.” A few delegates opposed Madison’s proposed change, believing that it would be difficult to schedule a special election. Other delegates objected to the limitation that Congress could appoint only officers of the United States. Not-withstanding these objections, Randolph’s suggestion with Madison’s amendment was accepted by a vote of 6 to 4. The debates at the Virginia ratifying convention clearly show that the intent was to allow for a special election, at least in the event of a double vacancy. There, George Mason objected to the succession provision on (p.35) the ground that it did not provide for an immediate election in case of a presidential vacancy. In reply, Madison stated that if both the President and the Vice President should die, another election would take place immediately, but that in default of such election the successor appointed by Congress could serve only for the remainder of the term.3

Unfortunately, the various congressional enactments prescribing a line of succession beyond the vice presidency have never been very satisfactory. Each reflected considerations of the personalities occupying the particular offices at the time, and each assigned the responsibility of succession to an official who had been chosen for his office for reasons other than his qualifications as a potential President.

The 1792 Law

The first succession law was formulated at the time when Thomas Jefferson was serving as Secretary of State (1790–93).4 His political foe Alexander Hamilton was serving both as Secretary of the Treasury and as leader of the Federalist Party, which then controlled the U.S. Senate. The view was very much current that should the Secretary of State be placed first in the statutory line of succession, Hamilton’s pretense as head of the Cabinet would be exposed and Jefferson’s potential as a future President enhanced.

A bill was presented in the First Congress providing that some officer, whose designation was left blank, should act as President whenever there were vacancies in the offices of President and Vice President.5 Suggestions subsequently were made to name the officer variously as the Secretary of State, the Secretary of the Treasury, the Chief Justice, the President pro tempore of the Senate, and the Speaker of the House. One of those objecting to the Chief Justice was James Madison, who felt that this would be an excessive merging of the executive and the judiciary. Madison was also opposed to the selection of the President pro tempore because he would be holding two offices simultaneously—those of senator and of Acting President—and that as a senator he would be subject to instruction by his state. In Madison’s view, the Secretary of State was the preferable successor, but others felt that the designation of the Secretary of State would give too much power to the President in the selection of a potential successor. It is not surprising, then, that no consensus developed in the First Congress and that the entire subject was dropped—but not until after some delegates had expressed their views concerning the need for immediate action. One member of Congress observed that dual vacancies would not happen once in 100 years; another, that there was an equal chance that the situation would not happen more than once in 840 years. In contrast, Representative William B. Giles of Virginia urged that the matter be dealt with promptly before any such calamity occurred. “Suppose,” he said, “the Vice President should die, then the fate of this Government would remain in the hands of the President (p.36) who, by resigning, would destroy its organization, without leaving a constitutional mode of filling the vacancy.”6

In the Second Congress, on November 30, 1791, the Senate passed a bill dealing with the selection of presidential electors. Section 9 of the bill named the President pro tempore and the Speaker successively as the persons to administer the government in the event of vacancies in the offices of both President and Vice President. When the bill came under scrutiny in the House by the Committee of the Whole, a motion to eliminate Section 9 entirely was made and defeated. Also made and defeated was a motion to remove the President pro tempore and the Speaker from the line of succession.

At the committee stage, a number of representatives expressed the view that neither the President pro tempore nor the Speaker was an officer in the sense contemplated by the Constitution.* Thus, Representative Giles declared, “if they had been considered as such, it is probable they would have been designated in the Constitution; the Constitution refers to some permanent officer to be created pursuant to the provisions therein contained.”7 Said Representative Hugh Williamson, “this extensive construction of the meaning of the word officer, would render it proper to point out any person in the United States, whether connected with the Government or not, as a proper person to fill the vacancy contemplated.”8 Other representatives, however, felt that they were officers. “If [the Speaker] is not an officer,” said Representative Elbridge Gerry of Massachusetts, “what is he?”9 Gerry, however, objected to Section 9 on the ground that it blended the executive and legislative branches. Representative James Hillhouse of Connecticut preferred a legislative succession and registered a general objection to any provision by which the President could appoint his own successor, since it would take “away the choice from the people … violating the first principle of a free elective Government.”10

When on January 2, 1792, the Committee of the Whole reported the bill to the House, a motion to strike out the President pro tempore was defeated narrowly while one to eliminate the Speaker was carried. Voting in favor of these motions were a number of framers, including Madison, Williamson, Abraham Baldwin of Georgia, and Thomas Fitzsimmons of Pennsylvania. Elbridge Gerry joined in the motion to eliminate the Speaker but not the President pro tempore. Thereupon, the bill was returned to the committee, which removed the President pro tempore from the line of succession and substituted the Secretary of State. The House then passed the bill and forwarded it to the Senate.11

(p.37) In the Senate—the result in no small measure of Hamilton’s influence and the opposition to Jefferson—the House amendment was rejected, and the President pro tempore and the Speaker were again inserted. On February 21, 1792, the bill was returned to the House, which withdrew its amendment, 31 to 24. The bill became law on March 1, 1792, when it was signed by President George Washington.12

Section 10 of the act provided that whenever the offices of President and Vice President became vacant, the Secretary of State was to notify the governor of every state that electors were to be appointed within thirty-four days prior to the first Wednesday of the ensuing December. If less than two months remained before that date and if the term of the last President and Vice President was not to end in the following March, the election would take place in December in the year next ensuing, with the newly elected President and Vice President taking office in the following March.* If the term was to end in March, no election at all would take place. The bill seems to have contemplated a four-year term for a specially elected President and Vice President.

Shortly after the law of 1792 was passed, James Madison expressed his opposition to it, in a letter to Edmund Pendleton, a prominent lawyer in the state. He questioned the constitutionality of placing the legislative officers in the line of succession, stating,

It may be questioned whether these [the President pro tempore and the Speaker] are officers in the Constitutional sense…. If officers, whether both could be introduced…. As they are created by the Constitution, they would probably have been there designated if contemplated for such service, instead of being left to the legislative selection.13

He also stated that the Speaker and the President pro tempore

will retain their Legislative stations, and then incompatible functions will be blended; or the incompatibility will supersede those stations, & then those being the substratum of the adventitious functions, these must fail also. The Constitution says Congress may declare what officers, &c., which seems to make it not an appointment or a translation, but an annexation of one office or trust to another office.14

For the next ninety-four years, the President pro tempore and the Speaker were the only successors after the Vice President. Although four Presidents and five Vice (p.38) Presidents died in office during this period, a double vacancy did not occur. Accordingly, the 1792 law was never implemented. Close calls did occur. In 1844, President Tyler’s life was endangered by an explosion, and in 1853, President Franklin Pierce suffered a serious case of malaria. Had anything happened to these Presidents, there would have been no Vice Presidents to serve in their places.*

The 1886 Law

Dissatisfaction with the act of 1792 reached a peak in the 1880s. Of major importance was the fact that when Chester A. Arthur succeeded to the presidency upon James A. Garfield’s death there was neither a President pro tempore nor a Speaker to act as President in the event that something happened to Arthur. Both positions remained unfilled for a period of several weeks. Similarly, when Vice President Thomas A. Hendricks died in November 1885, there was no President pro tempore or Speaker to succeed if the President were to die.

These events generated considerable discussion in Congress on the problems of presidential succession and presidential inability.15 Numerous objections to the act of 1792 were voiced. It was argued time and again during this period—particularly by Senators George F. Hoar of Massachusetts, Samuel B. Maxey of Texas, James B. Beck of Kentucky, and Augustus H. Garland of Massachusetts—that the President pro tempore and the Speaker were not officers of the United States within the meaning of the succession provision. James Madison was cited as authority for this proposition, as was the Blount impeachment, which had been interpreted as deciding that a member of Congress is not an officer of the United States.16 Parts of the Constitution itself were cited in support of this position.§ An officer under the (p.39) succession provision, the senators said, was a permanent officer, who receives his commission from the President and remains in that office while acting as President.17 As Senator Hoar stated,

[T]he Presidency is annexed by law to an office. It is not a person holding an office at the time succeeding to the Presidency, but it is an officer continuing in that office who is to perform as an annex or incident merely to another office the great duties of the Presidency itself. The moment he lays down or becomes incapable to perform the duties of the principal office to which the Presidency is annexed, that moment he must lay down or be incapable of performing the duties of the Presidency itself….18

It was urged that the Speaker and the President pro tempore as members of Congress could not be “officers of the United States” in the constitutional sense because Article I, section 6 provided that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” It also was pointed out that if either became Acting President while continuing to serve as a presiding officer and member of Congress, his tenure as Acting President would be subject to the will of his respective House and it could be ended abruptly if he was replaced as a presiding officer or lost his legislative seat at the polls. This objection to the 1792 law was more than academic since the law was predicated on the premise that the President pro tempore and the Speaker were not eligible to act as President unless they retained their offices while so acting. This prompted the additional objection that the law violated the principle of separation of powers, since the President pro tempore or the Speaker, as presiding officer of his House, was entitled to vote and participate in congressional debates. A further objection was voiced about the President pro tempore on the ground that in the case of an impeachment trial of the President when there was no Vice President, as in 1868, he would be placed in a difficult position, raising questions of propriety and legitimacy. Thus, Senator William M. Evarts of New York argued that the Constitution did not contemplate that the House could impeach and the Senate convict and then replace the President with one of their own members.19 Another criticism of the 1792 law was that it rendered possible a political transfer of the administration when the opposition party controlled Congress.

Most of the critics of the 1792 law favored a Cabinet line of succession, believing that there was no doubt about a Cabinet member’s status as an “officer” and that such a line would produce continuity of administration and policy. It also was asserted that the Secretary of State usually would be better qualified for the discharge (p.40) of executive duties than either the President pro tempore or the Speaker. Opposition to a Cabinet line of succession centered on the arguments that the original law was written by the Founding Fathers, and that the President would be able to appoint his own successor, which would be contrary, it was reasoned, to the elective principle of democracy.

The arguments for a Cabinet line of succession prevailed with the adoption of the act of January 19, 1886.*20 The act removed the President pro tempore and the Speaker from the line of succession and substituted the heads of the executive departments in the following order: Secretary of State, Secretary of the Treasury, Secretary of War, Attorney General, Postmaster General, Secretary of the Navy, and Secretary of the Interior.

Although some of the advocates of the 1886 law thought that the special election provision of the 1792 act was unwise or even unconstitutional, the following provision nonetheless was inserted in the 1886 act:

[T]he Secretary of State … shall act as President until the disability of the President or Vice President is removed or a President shall be elected; Provided, That whenever the powers and duties of … President … shall devolve upon any of the persons named herein, if Congress be not in session, or if it would not meet in accordance with law within twenty days thereafter, it shall be the duty of the person upon whom said powers and duties shall devolve to issue a proclamation convening Congress in extraordinary session, giving twenty days’ notice of the meeting [emphasis added].

Although the matter is far from clear, it appears that this provision was designed to permit Congress to decide whether or not to call a special election.21

Between 1886 and 1945 three Presidents and two Vice Presidents died in office. But because a double vacancy did not occur, it was unnecessary to implement the act of 1886.

The 1947 Law

After the death of President Franklin D. Roosevelt on April 12, 1945, and the succession of Vice President Harry S. Truman to the presidency, criticism of the 1886 (p.41) act manifested itself.22 Forty-four-year-old Edward R. Stettinius Jr., a former steel executive who lacked a clear-cut political affiliation and substantial government experience, was then Secretary of State. Truman later wrote that he felt strongly that the successor to the President should have held elective office and that until he could persuade Congress to make a statutory change in the line of succession, he preferred to replace Stettinius with a person with an elective background. Truman regarded James F. Byrnes, then sixty-eight years old and in poor health, as the best qualified candidate in light of his years of congressional and executive service; nor was Truman unaware of the political advantage of appointing Byrnes, who had expected to be Roosevelt’s vice-presidential choice in 1944.23 He offered Byrnes the position of Secretary of State when returning from the Roosevelt funeral at Hyde Park but delayed announcing his choice until the conclusion of the San Francisco United Nations organizational meeting at which Stettinius represented the United States. The conference ended June 26, Stettinius resigned June 27, and the appointment of Byrnes was announced June 30.24

Shortly before the Stettinius resignation, Truman sent a special message to Congress, in which he declared:

[B]y reason of the tragic death of the late 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.

Insofar 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 Vice President, can be most accurately said to stem from the people themselves.25

In placing the Speaker ahead of the President pro tempore, Truman stated that members of the House are closer to the people than those of the Senate, since they are elected every two years. Hence the Speaker would be closer than the President pro tempore. Truman also recommended that whoever succeeded after the Vice President should serve as President only until a new President and Vice President are chosen, either at the time of the next congressional election or by means of a special election. The newly elected team would fill out the existing term.

On June 25, 1945, Representative Hatton W. Sumners of Texas introduced a bill embodying the President’s recommendations and placing the Speaker and the (p.42) President pro tempore ahead of the Cabinet in the line of succession.26 It was debated briefly in the House on June 29, with supporting statements made by Representatives Estes Kefauver of Tennessee, John M. Robsion of Kentucky, Sumners, Chauncey W. Reed of Illinois, Earl C. Michener of Michigan, and A. S. Mike Monroney of Oklahoma.27 The enactment of the first succession law and its long acceptance, the Supreme Court decision in Lamar v. United States,*28 and parts of the Constitution itself were referred to in support of the contention that a law placing the Speaker and the President pro tempore in the line of succession would be constitutional. Representative Kefauver argued that Article I, section 2, clause 5 of the Constitution, which provides that the “House of Representatives shall chuse their Speaker and other Officers …,” shows that the Speaker is an officer. Representatives John W. Gwynne of Iowa, Charles E. Hancock of New York, and Raymond S. Springer of Indiana reiterated the arguments of others from past Congresses that the Speaker and President pro tempore were not officers within the meaning of the succession clause. The special election feature of the Summers bill was attacked by Representative Robsion, who stated that it would require conforming changes in state election laws and constitutions. He was joined by others. Kefauver observed: “[I]t probably would upset things too much within a period of four years to have four people fill the office of President—the President, the Vice President, the Speaker of the House—and then have an election to get the fourth person.”29 Said Representative Monroney: “I feel that the Speaker should continue to fill that unexpired term of the Presidency in order to avoid creating disunity and division which always occurs in a national election at a time when we would need the greatest unity in our country.”30 These representatives succeeded in eliminating the election provision altogether. As amended, the Sumners bill passed the House and was forwarded to the Senate, where it became pigeonholed in committee.

The 1946 congressional elections placed the opposition party in the majority in Congress. Yet President Truman still asked for action on his succession recommendations, in spite of the fact that their enactment would place a Republican Speaker, Joseph W. Martin of Massachusetts, first in the line of succession. In June 1947 the Senate gave serious consideration to a bill (similar to the Sumners bill) that had been introduced several months before by Senator Kenneth S. Wherry of Nebraska. (p.43) Unlike the Sumners bill, it contained no special election provision and expressly required the Speaker and the President pro tempore to resign from Congress before they could act as President.31 The Senate debate on the Wherry bill was similar to the debate on the Sumners bill. Thus, during the debates of June 1947, objections were voiced that the Speaker and the President pro tempore are not officers; that if an officer resigns his office he cannot act as President; that it would violate the principle of separation of powers for a member of Congress to act as President; that it was unlikely the Speaker and the President pro tempore would act in a case of a presidential inability, and that they are not elected on the basis of their qualifications for the presidency.32 An amendment to place the President pro tempore ahead of the Speaker was proposed by Senator Richard B. Russell of Georgia. It was narrowly defeated, largely because Senator Arthur Vandenberg of Michigan, the then President pro tempore, argued that the Speaker was “the officer reflecting the largest measure of popular and representative expression at the instant moment of his succession.”33 An amendment proposed by Senator Brien McMahon of Connecticut for a special election provision was defeated. McMahon’s proposal provided for the last Electoral College to select a new President and Vice President whenever vacancies in both offices occurred 120 or more days before the end of the term. Senator Wherry objected to this amendment on the grounds that Congress lacked the power to legislate a special election, that the Constitution provided only for four-year terms, and that it would interfere with the power of the states to say how their electors are to be chosen.34 Also defeated was a proposal by Senator Alexander Wiley of Wisconsin to add the highest-ranking military or naval officers to the line of succession after the Cabinet heads. The bill finally was put to a vote and was passed, 50 to 35. On July 10 it passed the House, 365 to 11, and on July 18 it became law with President Truman’s signature.*35

The 1947 law provides that:

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice-President to discharge the powers and duties of the office of President, then the Speaker … shall, upon his resignation as Speaker and as Representative in Congress, act as President.

If there is no Speaker at the time, then the President pro tempore acts as President, upon his resignation as President pro tempore and as senator. If either the Speaker or the President pro tempore acts, he does so until the end of the presidential term except in cases of failure to qualify or of inability, in which case he acts until a President or Vice President qualifies or recovers from an inability. If the President pro tempore acts, he cannot be replaced by a new Speaker. If a President pro tempore (p.44) acting as President should die while in office, he would be replaced by the new Speaker, or in the absence of a Speaker, by the new President pro tempore. The act is not clear on whether a new Speaker, elected after a Speaker had resigned to act as President, is next in line. The legislative history of the act suggests that he would be.36 Furthermore, the act does not state that the Speaker or the President pro tempore must take the presidential oath, although the legislative history indicates that such was intended.37 His resigning from Congress and taking the oath would probably be simultaneous so that, it may be argued, at the time at which he acts as President, he would still be an “officer.”

If there should be no Speaker or President pro tempore at the time of an emergency, then the line of succession runs to the highest on the following list who is not under a disability which precludes his discharging the powers and duties of the President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Postmaster General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor.* The act provides that a Cabinet officer automatically resigns his departmental position upon taking the presidential oath of office. He acts as President for the rest of the term or until a President, Vice President, Speaker, or President pro tempore is available. The 1947 law makes it clear that no one may act as President who does not have the constitutional requirements for the presidency.

Although the 1947 act has never been applied, the act’s imperfections were highlighted on several occasions when the Speaker became the heir apparent. From President Kennedy’s assassination until January 20, 1965, Speaker John W. McCormack, more than seventy years of age, stood at the top of the line and lamented that circumstance:

I have lived for 14 months in the position of the man who, in the event of an unfortunate event happening to the occupant of the White House, under the law then would have assumed the Office of Chief Executive of our country.38

Shortly after the assassination, when a reporter asked McCormack whether he might resign as Speaker to permit a younger person to become next in line, he declared, “I was elected Speaker and I’m staying Speaker. I’m amazed, just amazed, that you can ask that. Are there no limits to decency?”39 McCormack, at least, was of the same political party as President Johnson. Similarly, following the resignations from (p.45) office of Spiro T. Agnew and Richard M. Nixon, there were long periods of time during which Speaker Carl Albert—a Democrat, whereas Agnew and Nixon were Republicans—stood first in line under extraordinary circumstances. After Agnew’s resignation, the problem of Albert’s position as potential successor was compounded since the House of Representatives had almost concurrently begun an impeachment inquiry into President Nixon’s conduct in office. Albert’s succession during either of these periods would have shifted control of the White House to a different political party. Of the possibility of such succession, Albert reportedly said to a friend, “Lord help me. I pray every night it doesn’t happen.”40

Notes:

(*) The “absence” contingency was subsequently deleted from the succession provision by the Committee on Style. No doubt, it had been included initially because of the colonial practice under which a governor’s absence from the colony resulted in the assumption of his powers and duties by the person next in line. See Feerick, From Failing Hands 23–38. The intent in using it seems to have been to cover situations when a President might be absent from the seat of government. It was dropped by the Committee on Style probably because of the belief that the term “inability” was broad enough to cover such situations. The term “disability,” which seems to have been used interchangeably with “inability,” was dropped only from the first part of the provision, id. at 48–50.

(*) In the First Congress, Representative Alexander White of Virginia had advanced this argument, with which Representative Roger Sherman of Connecticut had disagreed. Annals of Cong., 1st Cong., 3d Sess. 1902–03 (1791). Representative William L. Smith of South Carolina also questioned whether Congress could provide for an officer to serve only until a special presidential election were held to elect a new President and Vice President. In his view, the Constitution provided only for a regular quadrennial election id. at 1902.

(*) Hence, depending on when the dual vacancies occurred, the 1792 law left open the possibility of the statutory successors’ serving for a period of up to seventeen months.

() In her pioneering work on presidential succession, Ruth Silva argues persuasively that the framers intended the Vice President and the officer designated by Congress to serve only as an Acting President, while continuing to occupy the position they held at the commencement of such service. R. Silva, Presidential Succession (1951).

(*) These events are described in From Failing Hands 97, 105.

() Prior to the 1880s, various suggestions for reform had been voiced. For example, in 1856 the Senate Judiciary Committee recommended that the line of succession be extended to the Chief Justice of the United States and then the associate justices according to seniority. S. Rep. No. 260, 34th Cong., 1st Sess. 5 (1856). The committee also expressed the view that the special election feature of the 1792 law was constitutional and that any specially elected President would serve a full four-year term. Eleven years later, a unanimous House Judiciary Committee said that Congress had no power to provide for a special presidential election. Cong. Globe, 39th Cong., 2d Sess. 691 (1867). In 1868, shortly after his impeachment trial, President Andrew Johnson recommended changing the line of succession to the members of the Cabinet, stating that the legislative officers had a stake in removing the President by resorting to the impeachment process.

() Senator William Blount of Tennessee was impeached by the House in 1797. When he was tried in the Senate, his lawyers pleaded lack of jurisdiction on the ground, among others, that a senator was not a civil officer and thus not subject to impeachment. The Senate dismissed the case, giving no reason for its decision. Since Blount had been expelled before the dismissal, another interpretation is that a member of Congress loses his status as a civil officer, and therefore may not be impeached, after he is expelled from Congress. See U.S. Const. art. II, §4.

§ See U.S. Const. art. II, §1, cl. 2, where a distinction is made between senators and representatives, on the one hand, and “officers,” on the other: “[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States …”; and U.S. Const. amend. XIV, §3: “No Person shall be a Senator or Representative in Congress … or hold any office, civil or military, under the United States….” It also was argued that a President pro tempore is not even an officer of the Senate, since U.S. Const. art. I, §3, cl. 5, provides: “The Senate shall chuse their other Officers, and also a President pro tempore….” See 14 Cong. Rec. 913 (1883).

(*) See Appendix C.

() This provision is the same as that placed in U.S. Const. art. II, §1, cl. 6 to allow for a special presidential election. See From Failing Hands, 40–56.

() The clause which provided that the Acting President serve “until … a President shall be elected” was severely criticized in Hamlin, The Presidential Succession Act of 1886, 18 Harvard L. Rev. 182, 191–93 (1905), where it was said to be both confusing and unwise in that the tenure of the successor was not fixed (i.e., whether or not it was for the rest of the presidential term or until a special election took place), and thereby it allowed Congress to harass an acting executive should it choose to do so. Cf. Silva, The Presidential Succession Act of 1947, 47 Michigan L. Rev. 451, 472–75 (1949).

(*) In Lamar v. United States, the Court held that a member of the House of Representatives was an officer within the meaning of a penal statute making it a crime for one to impersonate an officer of the government. The Court was careful to note that the issue presented was not a constitutional one. In the course of its opinion, the Court stated, “[W]hen the relations of members of the House of Representatives to the Government of the United States are borne in mind and the nature and character of their duties and responsibilities are considered, we are clearly of the opinion that such members are embraced by the comprehensive terms of the statute.” 241 U.S. 103, 112 (1916).

() As reported from committee, the bill provided for a special election to fill vacancies in the offices of President and Vice President if such should occur ninety days or more before the mid-term congressional elections.

(*) See Appendix C.

(*) The Secretaries of Health and Human Services, of Housing and Urban Development, of Transportation, of Energy, of Education, of Veterans Affairs, and of Homeland Security have been added to the line of succession since 1947. The Postmaster General was removed from the line at the creation of the U.S. Postal Service in 1970.

() The 1792 law was unclear on this point, thereby giving rise to a view that an Acting President did not have to possess the presidential qualifications specified in U.S. Const. art. II, §1, cl. 5, which refers to eligibility to the “office” of President.

(1) . See John Feerick, From Failing Hands 23–38 (1965).

(2) . The Records of the Federal Convention of 1787 499, 535 (Farrand ed., 1911 & 1937).

(3) . See J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 487–88 (2d ed. 1836).

(4) . See From Failing Hands 57–62.

(5) . 2 Annals of Cong. 1854 (1862).

(6) . Id. at 1865.

(7) . 3 Annals of Cong. 281 (1791).

(8) . Id. at 282.

(9) . Id. at 281.

(10) . Id. at 282.

(11) . See From Failing Hands 59–60.

(12) . 1 Stat. 240.

(13) . Writings of James Madison 95 & n. 1 (Hunt ed., 1906).

(14) . Id. at 95–96.

(15) . See From Failing Hands 140–46.

(16) . 8 Annals of Cong. 2245–416 (1798–99).

(17) . See From Failing Hands 144–45.

(18) . 14 Cong. Rec. 689 (1882).

(19) . 17 Cong. Rec. 250 (1885).

(20) . 24 Stat. 1.

(21) . See Charles S. Hamlin, The Presidential Succession Act of 1886, 18 Harv. L. Rev. 182, 191 (1905).

(22) . See From Failing Hands 204–10.

(23) . H. Truman, Memoirs, Vol. I, Year of Decisions 23 (1955).

(24) . Id. at 326.

(25) . H. Truman, Special Message to the Congress on the Succession to the Presidency, June 19, 1945, Public Papers of the Presidents of the Untied States 129 (1961); 91 Cong. Rec. 6272 (1945).

(26) . H. R. 3587, 79th Cong. (1st Sess. 1945).

(27) . 91 Cong. Rec. 7010–22 (1945).

(28) . 241 U. S. 103 (1916).

(29) . 91 Cong. Rec. 7017 (1945).

(30) . Id. at 7013.

(31) . S. 564, 80th Cong., 1st Sess. (1947).

(32) . See From Failing Hands 207–08; 93 Cong. Rec. 7767–70 (1947).

(33) . 93 Cong. Rec. 7781 (1947).

(34) . Id. at 7783–84.

(p.357) (35) . 3 U.S.C. § 19 (1964), as amended, 3 U.S.C. § 19 (1970).

(36) . 93 Cong. Rec. 8022, 8626, 7696 (1947); 91 Cong. Rec. 7009 (1945).

(37) . See 93 Cong. Rec. 7772 (1947); 91 Cong. Rec. 7026 (1945); see also Feerick, The Vice-Presidency and the Problems of Presidential Succession and Inability, 32 Fordham L. Rev. 482–83 & n. 159 (1964).

(38) . 111 Cong. Rec. 7967 (1965).

(39) . N. Y. Herald-Tribune, Dec. 12, 1963 at 1.

(40) . J. F. terHorst, Gerald Ford and the Future of the Presidency 145 (1974).