Fixing an Outdated Inclusion in the Presidential Line of Succession

The United States Presidential Line of Succession includes a ceremonial position and should be changed. Article II, Section 1, Clause 6 of the United States Constitution expressly gives Congress the power to enact laws governing the presidential line of succession.[1] In 1947 Congress passed the third Presidential Succession Act.[2] Under this act, which was last amended in 2006, the President Pro Tempore of the Senate is third in the line of succession to the presidency.[3] Prior to 1972, the President Pro Tempore was second, in front of the Speaker of the House, in the line of succession. The President Pro Tempore has held a place in the line of succession since the first version of the Act was passed in 1792.[4] In 1886, both the Speaker and the President Pro Tempore were removed from the Act; however, they were reinstated in 1947 in reverse order.[5] No Speaker or President Pro Tempore has ever ascended to presidency.

The President Pro Tempore is a constitutionally mandated position that presides over the United States Senate in the absence of the Vice President.[6] The President Pro Tempore regularly appoints other Senators, typically new members of the majority party, to preside over the floor on a day to day basis.[7] As a matter of tradition, the position of President Pro Tempore is held by the most senior member of the majority party in the Senate.[8] The position of the President Pro Tempore is analogous to the Speaker of the House of Representatives. However, the Speaker also serves as the head of the majority party, which is similar to Senate Majority leader.[9]

Given the current ceremonial status of the President Pro Tempore, the Senate Majority Leader should be substituted in the line of succession instead. While the President Pro Tempore is elected by the full Senate, it is a ceremonial vote. The current President Pro Tempore, Senator Chuck Grassley, was elected unanimously at the start of the 116th Congress in 2019. The result of this tradition is that the President Pro Tempore is often the eldest and most partisan members of the Senate.

It is time to adapt to include the de facto leader of the Senate in the line of succession and not the ceremonial head. The Majority Leader better represents both the Senate’s choice of leader and the will of the American people, as the head of the elected body. The President Pro Tempore, while ceremonially important, is a position akin to the Dean of the House[10] and was included in the line of succession due to its status as a Constitutionally mandated position.[11]

This could be accomplished several ways such as amending the Presidential Succession Act or having the same Senator serve as Majority Leader and President Pro Tempore.

The Presidential Succession Act could be amended again. The amendment would replace the President Pro Tempore with the Senate Majority Leader in the line of succession. The Senate Majority Leader, while only elected by the members of their caucus, is thought of as the leader of the Senate and would bring the Senate’s representative in the line of succession in line with the House’s.

An additional route to accomplishing this would be for the Senate Majority Leader to be elected to the position of President Pro Tempore. This would prevent the burden of enacting a new law while still accomplishing the ideal result. Combining the two positions would encourage accountability on behalf of the Senate Majority Leader to the Senate as a whole, and subsequently, if the Senate Majority Leader assumed the Presidency, he or she would be more representative of the wishes of the country.

Finally, the Senate could also keep the roles of Senate Majority Leader and President Pro Tempore separate and have them operate akin to the House, with the Majority Leader becoming the second highest position behind the President Pro Tempore. However, given the nature of House and Senate relations, this seems to be a highly unlikely outcome.

Without proposed legislation, it seems unlikely that the Senate would make the change to combine positions on its own. However, if Senator Chuck Grassley were to resign or be defeated the election and Senator Mitch McConnell remains Majority Leader, he would also be the longest standing Republican member of the Senate. This could potentially enable him to hold both positions and effectively combine the positions going forward. Ideally, the House and the Senate would set a precedent preventing ceremonial positions, such as President Pro Tempore, from being in the presidential line of succession.

The presidential line of succession is outdated. Putting the Senate Majority Leader in the presidential line of succession would be a good first step and give the Senate’s representative more legitimacy going forward than the ceremonial President Pro Tempore.

 

[1] U.S. Const. Art. II, § 1, cl. 6.

[2] 3 U.S.C. § 19 (2006).

[3] Id.

[4] John C. Fortier & Norman J. Ornstein, Presidential Succession and Congressional Leaders, 53 Cath. U. L. Rev. 993, 995-98 (2003-2004) (discussing the history of presidential succession).

[5] Id.

[6] U.S. Const. Art. I, § 3, cl. 3.

[7] Standing Rules of the Senate, S. Doc. No. 113-18, at 1 (2013).

[8] David A. Erhart, Note, “I am in Control Here”: Constitutional and Practical Questions Regarding Presidential Succession, 51 U. Louisville L. Rev. 323, 343-44 (2012-2013) (discussing presidential succession and the role of the President Pro Tempore).

[9] Id. at 342-43.

[10] The Dean of the House is a symbolic role held by the longest continuously serving member of the House of Representatives. (See Fathers/Deans of the House, https://history.house.gov/Institution/Seniority/Deans-of-the-House/)

[11] John C. Fortier & Norman J. Ornstein, Presidential Succession and Congressional Leaders, 53 Cath. U. L. Rev. 993, 995-98 (2003-2004).

 

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