Congress, Fix the Succession Act
The impeachment of President Trump, his recent contraction of COVID-19 and widespread concerns about a possible extended election dispute share an important feature: they all raise the remote, but real, possibility that the Succession Act of 1947 will be triggered. Unfortunately, however, the act—as it’s currently written—will likely exacerbate crises rather than solve them. Yet, despite significant public attention to continuity of government issues as far back as the wake of 9/11, Congress has thus far failed to act. It should do so now.
The purpose of the Succession Act is to avert a continuity of government crisis by designating an acting president in the event that both the presidency and vice-presidency are vacant or their occupants are incapacitated.
Article II of the Constitution empowers Congress to “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[.]” The 20th amendment further authorizes Congress to provide for the case in which an election dispute has prevented the selection of a president and vice-president by inauguration day.
Under current law, if the presidency and vice-presidency are vacant or their occupants are unable to discharge the powers of the office, the Speaker of the House becomes acting president upon resigning her office. In the absence of a qualifying Speaker—because the office is vacant, or because the occupant is constitutionally ineligible for the presidency or chooses not to become acting president— the president pro tempore of the Senate assumes the role. If neither qualifies, power transfers to a list of cabinet officials, beginning with the Secretary of State.
Although this may seem straightforward, it is anything but. Unlike the 25th amendment, which clarifies how the vice-president takes power if the president is incapacitated, the Succession Act provides no definition of inability or who judges it. This effectively means that the Speaker could assert the right to act as president in cases where either the president or vice-president is alive and incapacitated, but the fact of their inability is disputed.
The terms of succession also create the very instability they’re meant to prohibit. For example, a cabinet official serving as acting president is bumped from office if a president pro tempore or Speaker subsequently qualifies. Likewise, either the pro tempore or Speaker would be bumped by a vice-president or president who returned to office. In a worst-case scenario, this could result in a duck-duck-goose game where five acting or actual presidents become “it” within a very short period of an already unstable time.
Political considerations also hinder the call to service. Since a potential acting president must give up her or his current office to assume the presidency, it’s not difficult to imagine a scenario wherein such a call to duty—particularly in a nebulous or temporary situation—may cause wariness to outweigh patriotism.
Such a likelihood isn’t even particularly farfetched. For example, if the president were killed while the vice-president was injured and taking powerful pain medication and thus didn’t have the requisite mental capacity for several days, patriotic duty might induce a Speaker to resign her Speakership for a week in the presidency, but political concerns could easily make that decision extraordinarily difficult.
The Act’s fixed order of cabinet officials also makes little practical sense. Secretaries are prioritized by the age of their departments rather than their own individual skill, public stature or demonstrated ability to faithfully execute the duties of office.
Perhaps the most important danger comes from Article I’s attempt to avoid double dipping and political conflicts of interest. Although Congress is authorized to declare which officers shall act as president, there is legitimate debate as to whether legislative officials can constitutionally be in the line of succession at all.
This is a longstanding dispute that was debated when the original act was written in 1792 and again in 1947 (and, in fact, the previous 1886 Act specifically removed the president pro tempore and Speaker of the House from the succession order). This unsettled area of law is especially dangerous in an era of intense polarization like the one in which we now find ourselves.
Consider, for example, the destabilization that would occur today if both the president and vice-president die or become incapacitated, and both the Speaker and Secretary of State simultaneously claim themselves as acting president.
Should the Speaker be successful in that claim—even if constitutional—it would mean that an opposition party Speaker would become the acting president. This essentially reverses the previous presidential election and further undermines the legitimacy of an already-struggling government.
Moreover, divided government—rare when the law was written—now occurs regularly. The Speaker might also have an active role in the creation of the vacancy—either through impeachment or determination of inability—which, at the very least, raises legitimate conflict of interest issues. Secondary effects are also potentially negative: the prospect of party transfer might allow a president and vice-president to escape impeachment if they can declare it merely a partisan power grab (or a ‘coup’). Any and all of these scenarios are counterproductive to the Act’s goal of stabilization.
Fortunately, however, improving the Succession Act is straightforward. The first step is to—once and for all—remove legislative branch officials from the line in all cases except disputed elections that stretch past inauguration (when no cabinet exists and prioritizing duly elected officials over administration continuity makes sense).
Next, the president should be authorized to set the order of cabinet succession by public executive order from among Senate-confirmed department heads.
And finally, to diminish ambiguity around the determination of ‘inability’ in the first place, the decision and operation of the act should mimic the 25th amendment, providing that the next cabinet official in line, backed by a majority of the cabinet, has the authority to declare the vice-president (and president, if necessary) incapacitated.
Historically, Congress has only updated succession planning after events expose weaknesses. For example, the 1886 and 1947 revisions followed deaths of sitting presidents. The 25th amendment was based, in part, on informal arrangements President Eisenhower made due to health problems during his presidency. But, planning this important is always better and more effective when it’s done proactively. And while the unlikely possibility of needing to invoke the Succession Act makes it easy to ignore its flaws, current events don’t require a prophet to predict the potentially calamitous result of kicking this particular can down the road. The time to act is now.