Presidential Succession

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.

Article II, Section 1, Clause 6

This provision constitutes the anchor for presidential succession in the United States. It provides for the Vice President to take over in the event of the removal, death, resignation, or inability of the President. It also authorizes Congress to establish a line of succession beyond the vice presidency. Left unclear by the clause was whether the Vice President became President or simply acted as President in a case of succession.

Other ambiguities in the provision were noted at the Constitutional Convention of 1787 by John Dickinson of Delaware, who asked, "[W]hat is the extent of the term ‘disability' & who is to be the judge of it?" James Madison expressed concern that the provision would prevent the filling of a presidential vacancy by a special election, and he therefore successfully inserted the expression "until the Disability be removed, or a President shall be elected." It is not clear whether this change was intended to apply when the Vice President succeeded or only when an officer designated by Congress was called upon to serve in the case of a double vacancy. In any event, there has never been a special election for President, although the provision allowing for its possibility was included in the country's early presidential succession laws.

Both the First and Second Congresses debated who should be in the line of succession. The Secretary of State, the Chief Justice, the President Pro Tempore, and the Speaker were all mentioned. On March 1, 1792, Congress resolved the issue by choosing the President Pro Tempore and Speaker, respectively, prompting criticism from Madison and others that the congressional officers were not within the contemplation of the succession provision. This law was never implemented.

In 1841, when President William Henry Harrison died in office, Vice President John Tyler assumed the presidency for the rest of the term. His claim of being President, not simply Vice President acting as President, drew criticism. The precedent he set, however, took and became the operating principle when other Presidents died in office. On the other hand, Tyler's example became a major obstacle for situations involving the temporary inability of a President because, under the wording of this clause, the status of a Vice President in a case of death would appear to be the same as in a case of inability or resignation or removal. As a consequence, on a number of occasions Vice Presidents declined to consider relieving a disabled President because of the Tyler precedent and also because of the ambiguities first raised by John Dickinson. This was the case in 1881 when President James A. Garfield lay dying and some suggested that Vice President Chester A. Arthur take charge, and again in 1919 after President Woodrow Wilson's stroke when Vice President Thomas R. Marshall was urged to do the same. In 1967, the adoption of the Twenty-fifth Amendment eliminated much of the remaining uncertainties regarding presidential succession.

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John Feerick
Norris Professor of Law
Fordham University School of Law