United States Presidential Line of Succession - Constitutional Concerns

Constitutional Concerns

Several constitutional law experts have raised questions as to the constitutionality of the provisions that the Speaker of the House and the President pro tempore of the Senate succeed to the presidency. James Madison, one of the authors of the Constitution, raised similar constitutional questions about the Presidential Succession Act of 1792 in a 1792 letter to Edmund Pendleton. Two of these issues can be summarized:

• The term "Officer" in the relevant clause of the Constitution is most plausibly interpreted to mean an "Officer of the United States", who must be a member of the Executive or Judicial Branch. The Speaker and the President pro tempore are not officers in this sense.

• Under the principle of separation of powers, the Constitution specifically disallows legislative officials from also serving in the executive branch. For the Speaker or the Senate President pro tempore to become Acting President, they must resign their position, at which point they are no longer in the line of succession. This forms a constitutional paradox to some.

In 2003 the Continuity of Government Commission suggested that the current law has "at least seven significant issues ... that warrant attention", including:

1. The reality that all figures in the current line of succession work and reside in the vicinity of Washington, D.C. In the event of a nuclear, chemical, or biological attack, it is possible that everyone on the list would be killed or incapacitated.
2. Doubt (such as those expressed above by James Madison) that congressional leaders are eligible to act as President.
3. A concern about the wisdom of including the President pro tempore in the line of succession as the "largely honorific post traditionally held by the longest-serving Senator of the majority party". For example, from January 20, 2001, to June 6, 2001, the President pro tempore was then-98-year-old Strom Thurmond of South Carolina.
4. A concern that the current line of succession can force the presidency to abruptly switch parties mid-term, as the Speaker and the President pro tempore are not necessarily of the same party as the President.
5. A concern that the succession line is ordered by the dates of creation of the various executive departments, without regard to the skills or capacities of the persons serving as their Secretary.
6. The fact that, should a Cabinet member begin to act as President, the law allows the House to elect a new Speaker (or the Senate, a new President pro tempore), who could in effect remove the Cabinet member and assume the office themselves at any time.
7. The absence of a provision where a President is disabled and the vice presidency is vacant (for example, if an assassination attempt simultaneously wounded the President and killed the Vice President).