As the impeachment hearings roll on, President Trump’s opponents are starting to believe they will achieve their three-year dream of removing him from office. It has led some in the more extreme corners of the Resistance to get a bit ahead of themselves as they fantasize about also impeaching Vice President Mike Pence. The goal here is not just to remove a president from office for cause but to install a new president friendlier to their politics.
Under the Presidential Succession Act of 1947, that person would be Speaker of the House Nancy Pelosi. In this, at least, the plotters have read the law correctly. Unfortunately for them, most legal scholars believe it violates the Constitution. Since it has never been tested, we cannot know for sure, but it is likely that if Trump and Pence were removed from office, the Supreme Court would confirm the theory many legal experts hold: that members of Congress are not eligible to succeed to the office of president.
What Does the Constitution Dictate?
The Constitution provides for succession beyond the vice presidency in words that have remained unamended — and untested — since they were written:
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.
The 25th Amendment changed the disability provisions, but the succession statement still stands: If there are vacancies in the offices of president and vice president, Congress may designate by law which “Officer” comes next.
A lot hangs on the word “Officer.” Its capitalization is not just another example of the Constitution’s erratic 18th-century spelling: It is a term of art, referenced elsewhere in the Constitution in the section on Senate approval of presidential nominations to various offices. The Constitution never defines “Officer,” but the term clearly refers to executive branch appointees.
That was discussed in the debate over the first Presidential Succession Act in 1792. Some members of Congress proposed the president pro tempore of the Senate should be next in line. Others proposed the speaker of the House. Both ideas immediately raised objections from other members, who believed members of Congress were not “Officers” in the constitutional sense. Among those opposed was James Madison, known today as the Father of the Constitution.
Ultimately, a compromise was struck and passed, with former delegates to the Constitutional Convention voting on either side. The 1792 act named the president pro tempore of the Senate and the speaker of the House as next in line as acting president if both offices became vacant.
According to John Feerick’s 1965 book on the subject, “From Failing Hands: The Story of Presidential Succession,” part of the reason the secretary of state and secretary of the Treasury were not listed was related to congressional dislike of the occupants of those offices, Thomas Jefferson and Alexander Hamilton. Then as now, politics often dictates the result of ostensibly apolitical laws.
Improvements and Regressions
That was the state of the law for almost a century. While several vacancies emerged in each office over that span, they never happened at the same time, so the law was never tested. The closest we came was in 1868. After Abraham Lincoln’s assassination in 1865, Vice President Andrew Johnson became president, and the office of vice president remained vacant. When Johnson was impeached in 1868, the Senate came within one vote of convicting him. Had they done so, the president pro tempore of the Senate, Benjamin Wade of Ohio, would have succeeded to the White House.
People at the time saw some of the problems with this scenario. For one thing, Wade had a vote in the Senate trial that would have elevated him to the presidency — and he voted to convict. That kind of conflict of interest sullies the impeachment process, to say the least. The removal of the president would also have shifted partisan control of the office, a factor some historians attribute to Johnson’s acquittal.
Another problem emerged in 1881, when James Garfield was assassinated. Vice President Chester Arthur became president, but Congress was not in session. At the time, that meant there was no president pro tempore and no speaker of the House. No one was available to become president if Arthur should die. In 1885, the same thing happened when Grover Cleveland’s vice president, Thomas Hendricks, died while Congress was not in session. The 1792 act made for a precarious situation.
The Congress that met in 1886 understood all of these problems and wrote a new Presidential Succession Act, which President Cleveland signed into law that year. With lingering doubts about whether congressmen were actually “Officers,” and with the increased prominence of the office of secretary of state (six had been elected president), their path was clear. The 1886 act removed the speaker and president pro tem from the succession and added the Cabinet secretaries in order of their importance, as Congress saw it.
This fixed many of the problems of the 1792 act. There was no doubt the Cabinet members were “Officers.” They would almost always be of the president’s party. The offices would almost always be occupied. And there was no conflict of interest in an impeachment. This would remain the law of the land until 1947. The only question, then, is why it was ever changed.
The problem, as President Harry Truman saw it, was a lack of democratic legitimacy. Truman, who had succeeded to the presidency upon Franklin Roosevelt’s death in 1945, believed it was a problem for the next in line to be the secretary of state, Edward Stettinius.
Truman suspected Stettinius was somewhat unqualified, for he had been a successful businessman before joining the FDR administration to assist the war effort, but he was politically inexperienced. Beyond that though, the idea that Stettinius had been appointed to his current position rather than elected by the people bothered Truman. He might have been a capable secretary of state, but would he make for a capable president?
Truman asked Congress to change the law to put the congressional leaders back into the line of succession. They did so, placing the speaker and president pro tem as next in line after the vice president. As in 1792, there was a political element to the change: When Truman called for the revision in 1945, his fellow Democrats controlled both houses of Congress. When Congress actually agreed to change the law, the Republicans had taken both houses. The 1947 act placed Speaker Joseph W. Martin next in line to the presidency.
Change It Back
The changes in 1947 reopened the old constitutional question the 1886 act had solved. The speaker of the House may be elected by a small fraction of the American people, but the fact remains that Constitution experts — including James Madison — have long maintained that adding the speaker to the succession violates the requirement that succession pass to an “Officer” of the United States. The same applies to the president pro tempore of the Senate, which these days has an added problem of being merely an honorary office given to the longest-serving member of the majority party.
All the prudential concerns erased by the 1886 act were also revived in the 1947 act. Now two of the people who might benefit from a president’s impeachment are part of the process again. There is also the political problem that comes with divided government: Congress may be more willing to impeach a president or vice president when the result would be a member of a different party moving closer to the top spot. Moreover, the two congressional jobs are at least partly assigned by long service in those bodies. That is why our current speaker and president pro tem are 79 and 86 years old, respectively. Secretary of State Mike Pompeo is 55, a more typical age for a president.
Congress is unlikely to change the law now, in the midst of an impeachment battle and with a Democrat second in line, but they should consider doing so before too long. The provisions of the various succession acts have never been triggered in the 227 years since the first one was written, but should they ever be called into action, it is essential that we have clarity about who the president will be.
The passage of the 25th Amendment in 1967 meant that vice presidential vacancies could now be filled, making the possibility of a double vacancy more remote. But that does not mean we should never expect it to happen. By putting constitutionally ineligible officers into the presidential succession, the Congress in 1947 guaranteed a court fight should a double vacancy ever occur. Restoring the Cabinet to the presidential succession is the best move politically, constitutionally, and prudentially — and it would put an end to schemes like those emanating from the resistance fever swamps today.