“Designated” Survivor: Flaws in the Presidential Succession Act

About the Author: Greg Warren is a first year evening law student at American University- Washington College of Law. Greg graduated from George Mason University and hopes to work in Government Affairs on Tax Policy issues after graduating law school. The views expressed in this blog are solely those of the author and do not necessarily reflect the opinions of their employer.

“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.”

U.S. Const. art. II, § 1, cl. 6.

Since the ratification of the Constitution and with it the “vacancy and disability” clause above, Congress has passed three major pieces of legislation setting out the order in which particular government officials would assume the presidential powers and responsibilities should both the President and Vice President not be able to serve.[1]  Following the Vice President, the order of the current line of succession is: The Speaker of the House of Representatives, the President pro tempore of the Senate, and then each member of the Presidential Cabinet in the order of establishment for each Cabinet-level department (so long as the official in the Secretary position meets the constitutional requirements to become President).[2]  The last Congressional Act to systematically alter the order of succession was signed into law in 1947 under President Truman following the death of Franklin D. Roosevelt in 1945.[3]  Since then, there has been frequent debate pertaining to the legality of the statute, as well as potential drawbacks in the structure that could lead to confusion or disorder when the nation is at its most vulnerable.[4]

Following the attacks on September 11, 2001, concern regarding the presidential line of succession grew significantly, with leaders from both the Democratic and Republican parties that are included in the line now often relocating to secure sites during large political events where the majority of the line of succession is in attendance (e.g., State of the Union Addresses).[5]  With the rise in apprehension, there has also been an increase in the analysis and criticism over the line of succession statute’s current language.[6]  Some of the larger concerns that are often raised include whether members of the legislative branch should be included in the line of succession (especially given that they are often affiliated with another political party than the Administration in power), the possibility of an acting President being suddenly supplanted by the election of a new higher-ranking officer in the line, and whether the order should be restructured based on the extent a Cabinet Secretary’s duties cover national security or military policy.[7]

One dispute concerning the vacancy and disability clause in the Constitution is the meaning behind the word “officer” and whether an “officer of the United States” suggests officials in any of the three branches of government, or exclusively officials within the executive branch.[8]  As to the former, the first Presidential Succession Act was enacted shortly after ratification of the Constitution in 1792 and had the President pro tempore of the Senate and then the Speaker of the House respectively in the line of succession after the Vice President.[9]  As to the latter, the “Incompatibility Clause” included in the Constitution states that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office” which has been interpreted by constitutional scholars to mean that members of Congress cannot be considered “officers” of the United States.[10][11]

Another point of contention regarding the current structure of the line of succession is the concern of what is known as “bumping.”[12]  The term refers to a possible situation where a legislator suddenly supplants, or “bumps,” a Cabinet member that is serving as acting President, causing there to be a potential for multiple officials becoming acting President in a short period of time.[13]  Consider the following scenario:

The President has called for an emergency Cabinet meeting at the White House and has invited the Vice President, the Speaker of the House, and the President pro tempore of the Senate to join as well.  Every invited official is able to attend the meeting except the Secretary of Commerce, who is traveling back from the Midwest when a bad snowstorm has caused her flight to be delayed.  During the meeting, there is an attack on the White House and the President and all of the officials in attendance are wiped out.  At that point, the Secretary of Commerce (assuming she meets the constitutional requirements to become President) would be required to resign from her role as Secretary and immediately assume the role of acting President.  The following morning, however, while she is exercising all of the powers and duties bestowed upon her to run the country and investigate the attack on the White House, the U.S. House of Representatives convenes and elects a new Speaker of the House.

In this scenario, the new Speaker would immediately become an officer in the presidential line of succession and, because the Speaker of the House is listed higher in the succession order than the Secretary of Commerce, he would automatically become acting President under the current statute.[14]  Additionally, since the former Secretary of Commerce had to first resign as Secretary before becoming acting President, she would suddenly no longer hold any position in public office.[15]  While it would be important for both chambers of Congress to swiftly elect new leaders, the statute not only muddles the transferal of authority of the most powerful office in the world, but it could indirectly give Congress the ultimate power to handpick who should be acting President in a time of crisis.

Finally, many scholars have raised the argument that the Secretary of Homeland Security, with authority over major policy programs related to catastrophic scenarios such as the Federal Continuity Directive, should be placed higher in the order in the line of succession.[16][17]  Because the Department of Homeland Security was the last executive department to be established (2002), the Secretary of Homeland Security is currently last in the president line of succession,  sitting at 18^th in the order.  There have been numerous attempts to move the Secretary of Homeland Security up in the order, but legislation that would do so has not been introduced in Congress since 2005.[18]  One would think assume that lawmakers would agree that it is much more logical for the Secretary of Homeland Security to become acting President in a doomsday scenario ahead of the Secretary of Interior or Housing and Urban Development.

The insurrection on the Capitol earlier this year was another reminder of the constant security threat to our nation’s political leaders as the Vice President, Speaker of the House, and President pro tempore of the Senate were all in the Capitol just prior to the mob breaking into the building.[19]  The world has experienced great change since President Truman was in office in 1947, and it is past time for the federal government to examine and implement commonsense reforms to our presidential succession plan.  While we hope the Presidential Succession Act procedures will never be invoked, it is imperative that we are as prepared as possible should the unexpected strike.

[1] Brian C. Kalt & David Pozen, The Twenty-Fifth Amendment, Common Interpretation, Nat’l Const. Ctr. (Retrieved March 20, 2021), https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxv/interps/159.

[2] Presidents, Vice Presidents, and First Ladies of the United States, About the U.S., https://www.usa.gov/presidents.

[3] Presidential Succession Act of 1947, Pub. L. 80-199, 61 Stat. 380 (1947).

[4] Garrett M. Graff, Who’s in Charge of America After a Catastrophe? Who Knows?, Politico Mag., Politico (Sept. 21, 2016), https://www.politico.com/magazine/story/2016/09/designated-survivor-president-succession-doomsday-plans-214271/.

[5] Scott Bomboy, Why is there a designated survivor for the State of the Union?, Const. Daily, Nat’l Const. Ctr. (Feb. 5, 2019), https://constitutioncenter.org/blog/why-is-there-a-designated-survivor-for-the-state-of-the-union.

[6] Presidential Succession Act: Hearing Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 108th Cong. 110 (2004) (opening testimony of Thomas H. Neal, Project Mgmt. Coordinator, Gov’t. and Fin., Cong. Rsch. Serv.).

[7] Thomas H. Neale, Cong. Rsch. Serv., R46450, Presidential Succession: Perspectives and Contemporary Issues for Congress (2020).

[8]  The Continuity of Gov’t Comm’n, The Continuity of the Presidency: The Second Report of the Continuity of Government Commission 26 (2009).

[9] Presidential Succession Act of 1792, 2nd Cong., 1st Session, Chapter 8, 1 Stat. 8 (1792).

[10] U.S. Const. art. I, § 6, cl. 2.

[11] Ensuring the Continuity of the Presidency: Hearing Before the S. Comm. on the Judiciary and S. Comm. on Rules and Admin., 108 Cong. 928 (2003) (opening testimony of W. Miller Baker, Esq., McDermott Will & Emery).

[12] Neale (2020).

[13] Fordham University School of Law’s Clinic on Presidential Succession, Ensuring the Stability of Presidential Succession in the Modern Era, 81 Fordham L. Review 1, 42 (2012).

[14] 3 U.S.C. § 19(d)(3) (2021).

[15] Id.

[16] Neale (2020).

[17] U.S. Dep’t. of Homeland Sec., Fed Emergency Mgmt. Agency, Fed. Continuity Directive 1, (Jan. 17, 2017), https://www.gpo.gov/docs/default-source/accessibility-privacy-coop-files/January2017FCD1-2.pdf.

[18] H.R. 1455, 109th Cong. (2005); S. 442, 109th Cong. (2005).

[19] Jan. 6 Rioters Searched for Speaker Pelosi After She Was Evacuated from Capitol, CBS SF Bay Area, CBS (Feb. 10, 2021), https://sanfrancisco.cbslocal.com/2021/02/10/video-jan-6-rioters-searched-for-speaker-pelosi-after-her-evacuation-from-capitol/.