by Michael Liss
I have a terrific pain in the back of my head.
—Franklin Delano Roosevelt, April 12, 1945.
It was all so fast. Just moments earlier, FDR was sitting for an official portrait, reading the newspapers, writing a few notes. Now, after 12 years of turmoil, World War and Depression, he is gone, work unfinished. Within hours, his successor, Harry S. Truman, is sworn in, and, for the first time, is told of the Manhattan Project. The awesome moral responsibility for the use of nuclear weapons falls on his shoulders, and a bullseye appears on his back.
The fact is that Vice Presidents are pretty much non-entities, supporting actors in a one-man play, unless and until they suddenly become the most important person in the world. History shows us that this occurs far more often than simple mortality tables might suggest. By one estimate, being President is about 27 times more dangerous than being a lumberjack.
The authors of the Constitution understood this, but, after vigorously debating the extent of Executive Power and the interrelationship of the three branches of government, and creating the future monster known as the Electoral College, they flickered out a bit when it came to figuring out Presidential succession beyond the elevation of the VP. Instead, they kicked the can to Congress in Article II, Section 1, Clause 6, to declare which “Officer” would act as President if both the President and Vice President died or were otherwise unavailable to serve during their terms of office “until the disability be removed, or a President shall be elected.”
Congress got right down to this searching for the Devil in the details, found him, and finally (and begrudgingly) settled on a compromise in which the Senate’s President pro tempore would be first in line, followed by the Speaker of the House. Cabinet Members were ruled out (especially the then-Secretary of State, the annoying, ambitious, and possibly disloyal-to-Washington Thomas Jefferson), as was the Chief Justice of the Supreme Court.
To that, Congress added another feature that was really quite interesting: Regardless of who would serve, the appointment would be temporary, and, within two months, a new special election would be held, and the newly elected President would then serve a full four-year term beginning in March of the following year. The bill passed, was signed by George Washington into law, and became what is known as the Presidential Succession Act of 1792.
Mistakes were made, both in the Constitution and in the 1792 Act. These were some of the best political theorists we have had, but they were inventing an entirely new form of national government, without the benefit of much practical experience. First, the Constitution called for the Vice President to be the person who came in second in the Electoral College vote. This made perfect sense from a competence standpoint. Unfortunately, it showed itself to be an utter disaster when, in 1796, it paired winner John Adams with loser (and passionate rival) Thomas Jefferson, and then, in 1800, Jefferson again with his one-time-ticket-mate and then mortal enemy Aaron Burr. Congress and the country fixed this one in 1804 with the 12th Amendment. Second, the Special Election idea was interesting, but, by giving the winner a new four-year term, it could permanently make Congressional elections off-cycle. Third, and this was tantalizing: the 1792 Act might have incorporated an idea that was actually…unconstitutional.
Yes, there’s a legitimate argument, supported by Madison himself, that “Officers,” as referred to in Article II, meant “Officers of the United States” (meaning of the Executive Branch), and did not include “Officers” of the Legislative Branch. If that argument was valid, then the 1792 Act’s inclusion of the President pro tempore and Speaker violated the Constitution itself. Given that the same two positions are included in our current law on succession, I’m going to leave to your imagination what might occur if a few good Supreme Court textualists take note of that constitutional issue at a convenient time.
Constitutional or not, we used the Presidential Succession Act of 1792 for almost a century, fortunately never once having to wonder whether the President pro tempore or the Speaker was really an Officer. Things did happen: Presidents died in office and were replaced by Vice Presidents, and Vice Presidents died in office, and were replaced by—no one. In just the period between 1841 (the premature death of William Henry Harrison) and 1881, VP slot was vacant for almost 18 years. There were also close brushes with mortality, physical and political: John Tyler, almost a year after assuming the Presidency, was on the USS Princeton when the largest naval gun in world exploded, killing at least six, including his Secretary of State Abel Upshur and Navy Secretary Thomas Gilmer. Andrew Johnson, the hated heir to Abraham Lincoln, was Impeached, and, during his Senate trial, his chief antagonist was Benjamin Wade. Wade also happened to be President pro tempore—and would become the next President, if Johnson were convicted.
Clearly, there were a few bugs in the system that had to be addressed. The 1881 assassination of James Garfield (and his excruciating 80 days of suffering) gave momentum in Congress for a reexamination of the original 1792 Act. The debate lasted several years—the original bill was introduced by Massachusetts Senator George Hoar in 1882—and a lot of the issues raised still have resonance. Among them were whether the special election called for in the 1792 Act still made sense, and the conflict of interests stemming from having the House and Senate initiate and then vote on Impeachment and removal, to the personal benefit of their most powerful members. A further problem related to what was informally known as “bumping” (a Cabinet Officer who assumed the Presidency after the President pro tempore or Speaker refused it could later be “bumped” if either of them, or a subsequent President pro tempore or Speaker changed his mind).
Ultimately, Hoar’s bill dropped special elections and moved succession in the absence of a Vice President from Congress to the President’s Cabinet: first to the Secretary of State, followed by other Secretaries in order of their Department’s creation: Treasury, War, Attorney General, and so on. Doing so, it was felt, would lessen the political incentive for removal by the only bodies that had that authority over both President and Vice President. Finally, there was the added benefit of continuity: having the President’s Cabinet provide his successors increased the likelihood that his policies would survive him, at least for the balance of his term. A shaken country perhaps did not need an entirely new government and an entirely new governing philosophy.
Still, in a bow to Congress/Congressional oversight, conditions were included that were intellectually sound, but could have unintended consequences: the “candidate” would have had to have been already confirmed in his Cabinet post, not be under impeachment by the House, and otherwise be qualified to be President. While these and other provisions were being debated, Grover Cleveland’s Vice President Thomas A. Hendricks died after less than nine months in office, underscoring the obvious: Sooner or later, there could be a double vacancy, and the potential for real disruption. The time for change was now, and, in December 1885, the bill was passed by Congress, to be signed into law by President Cleveland in 1886.
Not unexpectedly, the lived experience remained the same. Presidents continued to die in office (McKinley, assassinated and replaced by Teddy Roosevelt, and Warren Harding, replaced by Calvin Coolidge). Vice Presidents as well—Garret Hobart (McKinley’s first) and James Sherman (Taft’s). In 1919, Woodrow Wilson suffered a catastrophic stroke, but clung to the Presidency through the balance of his term. His Cabinet and his Vice President knew he should go, but without a formalized process for removing him, they also knew their efforts would appear to be tantamount to a coup. Wilson “governed” through his wife and personal physician.
That was the background when Truman was suddenly elevated to stand in the shadow of a giant. A country at war, about to be introduced to the possibility of the greatest mass casualty events ever, needed consistent, continuous leadership that credibly reflected its founding values. Truman was dissatisfied with the 1882 Act in several ways and wanted a change.
His proposals, many of which were ultimately adopted in the 1947 Act, reflected his own experience and preferences. He was a man of the Senate, having served there for 10 years prior to his election as VP. He trusted both the legislative process and the men who engaged in it. He was less comfortable with his own Cabinet (he had asked Roosevelt’s to stay on during transition) and clearly preferred elected people to appointed ones. To Truman’s way of thinking, someone who stood before the voters, even if it was just in his Congressional District, had more legitimacy than an éminence grise.
Truman’s democratic (small “d”) inclinations also led him to believe that a President should not have the authority to select his immediate successors. He pressed for four things: (1) Flipping the priority to elevate the two elected officials (President pro tempore and Speaker) ahead of his Cabinet Members, (2) placing the Speaker as first in line, ahead of the President pro tempore, (3) including the “bumping” provision so that those two legislative leaders would essentially have a permanent “option” on the Presidency, and (4) calling for a special election to replace the “Acting” President, as the 1792 law did.
To Truman’s credit, he stuck to his position even after Democrats lost both the House and Senate in the 1946 Midterms, meaning he was willing to sacrifice his own policy aims for what he thought was the greater good. While the special election idea failed, Truman’s other priorities were largely accepted. The Senate passed the Act 50-35, the House 365-11, and the 1947 Act remains controlling law. What it didn’t do was deal with the “Wilson” problem, leaving that for future Presidents to write private, Constitution-free memoranda to their Vice Presidents and Cabinet (which they did, prolifically).
The 25th Amendment plugged the Wilson gap by providing a structure for dealing with both temporary and permanent disabilities of a President. It also, finally, set out a process for replacing a Vice President. It was a great, bipartisan achievement, accomplished, in part, by Senator Birch Bayh’s critical insight not to overreach where it wasn’t necessary. The best way to see the 25th is as an essential bolt-on. It does not deal with possible constitutional (and practical) objections to having the Legislative Branch play a dual role, both in Presidential and Vice-Presidential succession, and it leaves “bumping” untouched. In short, the process is still open to bare-knuckled politics.
More and more, that seems to be the primary problem. Our world is growing more dangerous in both the biggest and smallest of ways. A dictator may threaten nuclear war, a targeted attack might largely decapitate leadership, or a President and Vice President, along with Cabinet and senior staff, might be in the Situation Room sharing a deadly disease. For what it’s worth, Kiefer Sutherland is not eligible, being a British and Canadian subject.
Neither is Harry Truman, or enough people with Harry Truman’s values. The worst shortcomings of the 1947 Act and the 25th Amendment are that, in practice, bad outcomes are possible, even with the best of intentions, and worse outcomes are likely, either through bad planning or bad faith.
First, the requirement in the 25th for a legislative officer to resign from Congress in order to assume the duties of the Presidency can distort outcomes. Being Speaker is a really good job. Being President is better, but perhaps not if the President you are replacing has but a few months left in his term or is just temporarily incapacitated. If the idea is that the Speaker is invested with special powers that would promote governing excellence, then why not let that person resign as Speaker for a defined period, perhaps two terms, while allowing him to keep his Congressional seat?
Second, the job of President pro tempore has become ceremonial, with the slot given to the longest continuously serving Senator from the majority party. Very old Senators become President pro tempore. The current one is the retiring Pat Leahy (82) and he’s the spring chicken of the lot—past ones have included Chuck Grassley (88, running for reelection, and, if he wins, likely to assume the role in the 118th Congress); Robert Byrd, who served into his 90s; the centenarian Strom Thurmond; and 80-somethings Ted Stevens and Daniel Inouye. To give you an idea how desiccated this group is, should the Democrats, miraculously, manage to hold the Senate in 2022, the new President pro tempore would be (take a breath) Diane Feinstein. I think we would all agree this screams out for reform. Either select spritelier Presidents pro tempore or move the position further down (or even out) of the line of succession. The very last thing you want is an elderly, unfit President pro tempore taking the job because if he or she doesn’t, an opportunity to flip party control is lost.
None of the structural and drafting issues, even the potential constitutional one, would be nearly as problematic if we hadn’t so thoroughly discarded Harry Truman’s values. There just aren’t enough politicians who care about integrity. This has inevitably led to hyper-partisanship and Parliamentarianism. Non-consequential votes are difficult; on big ones, it’s nearly impossible to draw any meaningful support from the other side. Even things that would ordinarily pass through a demilitarized “voice vote” are now jammed by political peacocks looking to grab a bit of airtime. If Congress can’t manage the naming of a post office without acrimony, how can we expect it to handle something as critical, and possibly historic, as a Presidential transition?
A legitimate government comes to power fairly and doesn’t lurch in the absence of a mandate by the voters. While I respect Truman’s preference for elected officials over appointed ones, his “Legislature first” approach makes lurching quite likely.
The facts are staring us in the face. From Truman’s “Do Nothing” Republican-controlled 80th Congress to our 117th, there have been 26 Congresses that have featured a Speaker of the opposition party and 16 in which the opposition party controlled the Senate. Divided government happens, and, by placing the Legislature so high up in succession, you are inviting chaos—and no-holds-barred partisanship.
There are two ways to deal with this, neither of which has much likelihood of succeeding in this Congress. The first would be the simplest—return to the 1886 Act and Cabinet-only succession. This wouldn’t eliminate Legislative gamesmanship (a hostile Senate could slow-walk Presidential nominees, for example), but it would simplify things and make it more likely the President’s policy choices and approach to governance would be continued. It’s never, ever going to happen. The second would be to give the Secretaries of State and Treasury priority over the Speaker and (help!) President pro tempore, and eliminating “bumping.”
Of course, even if you could get Congress to agree and the President to sign a bill incorporating the latter, control of the House would be critical, because the only way a candidate would be considered eligible is if he were not under impeachment by the House. Mark me as cynical, but, should a Presidential vacancy occur in the absence of a VP, I have very little doubt that a motivated House of Representatives would find some high crime and misdemeanor perpetrated by both the Secretaries of State and Treasury, and vote on party lines to Impeach. This does not mean the Senate would convict, but it would take both Secretaries out of the line of succession, leaving the Speaker to take charge.
Isn’t this all farfetched? Are we really going to have a Presidential vacancy and Vice-Presidential vacancy at the same time? Doesn’t the 25th provide for a replacement when necessary? It does, but the “Harry Truman” problem arises again—and not just in West Wing fiction. There’s a structural bottleneck, should partisan fever take hold: The President gets to nominate, but both Senate and House must bless the choice with a simple majority vote. The 25th does not mandate good faith, nor does it require that both chambers take up the nomination in a timely fashion. Should the opposition party control either the House or the Senate, and if their caucus is unified, either could demand that the next VP be of their Party, or someone of the President’s party, but of their choosing.
Should this all be fixed? Of course—the world is much more complex and dangerous than ever, and it’s the duty of Congress and the President to try to provide the least disruptive and most credible transition of power in time of crisis.
Can any of this be fixed? With good will and honest bargaining between the parties, anything is possible.
I’ll acknowledge that last sentence does smack of fiction.
***
I want to thank Fordham University Law School for two superb programs which spurred my interest in Presidential successions. The first was held back in 2017 to celebrate the 50th Anniversary of the adoption of the 25th Amendment: “Continuity in the Presidency: Gaps and Solutions. Building on the Legacy of the 25th Amendment.” The second was given earlier this month: “The Presidential Succession Act at 75: Praise It or Bury It?” Professor John Rogan organized it and was kind enough to provide me with the links to the presentations themselves and the materials. There are some superb (and challenging) articles that are well worth your time, and I would start with Professor John Feerick’s on page 45 of the PDF. Dean Feerick worked with Senator Birch Bayh on the drafting of the 25th Amendment and was able to share firsthand information.
And below is a link to articles in the Fordham Law Review that resulted from the 2017 symposium on the 25th Amendment:
http://fordhamlawreview.org/issuescategory/december-2017-vol-86-no-3/