The President Pro Tempore Clause

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

—Roy E. Brownell II

Introduction

The Constitution provides presiding officers for both houses of Congress. In the House of Representatives, members “chuse their Speaker.” (See Essay No. 13.) By contrast, the Senate—with the rare exception of a Twelfth Amendment contingent election—does not name its default presiding officer, the Vice President, because he is nationally elected. (See Essay No. 18.) In the “absence of the Vice President,” the Constitution adds that the Senate shall choose a temporary replacement, the President pro tempore (“for the time being”). By tradition, the President pro tempore has always been a Senator, but—as with the Speaker—it is not required that he be a lawmaker.

The Senate, rather than the judiciary, has resolved most constitutional questions about the office. These include defining “absence” that triggers the President pro tempore’s presiding officer role, outlining his Senate responsibilities, and determining when he can preside over impeachment trials.

History Before 1787

At the time of the U.S. Constitution’s framing, there was some precedent for a temporary presiding officer in the British Parliament. A Speaker presided over the House of Commons, but if the Speaker was absent, the body could choose a Speaker pro tempore with the monarch’s blessing.¹

Closer to home, New York State offered a template of its own for the Framers.² Under the state’s 1777 constitution, the Lieutenant Governor was “president of the senate.” If he assumed “the power and authority” of the governor’s office or was “unable to attend as president of the senate,” lawmakers were “to elect one of their own members to the office of president of the senate, which he shall exercise pro hac vice [‘for this occasion only’].”³ The state charter also provided that the temporary President of the Senate would serve as the next in line of gubernatorial succession.⁴ The document itself was even signed by the “President pro tempore” of the state constitutional convention. Thus, the New York Constitution offered the clearest state forerunner of the President pro tempore of the U.S. Senate.⁵

The Constitutional Convention

On June 18, 1787, Alexander Hamilton put forward his governmental plan at the Constitutional Convention. His presentation marks the first recorded mention of the President of the Senate during the proceedings.⁶ On August 6, the Committee of Detail offered its own blueprint, which provided that “[t]he Senate shall chuse its own President and other Officers.”⁷ Under this proposal, as well as Hamilton’s, the President of the Senate was made the Executive’s immediate successor.⁸

However, on September 4, the Committee of Eleven introduced the vice presidency, which altered the dynamics of the Senate President position.⁹ Whereas earlier plans had specified that the Senate would choose its own presiding officer, the Committee suggested that a nationally elected Vice President would now serve as “ex officio, President of the Senate,” and could break tie votes.¹⁰ In addition, the Vice President was made next in line for the presidency.¹¹ At the same time that it unveiled the vice presidency, the Committee also proposed his replacement in the chamber: “[I]n case of” the Vice President’s “absence, the Senate” would “chuse a President pro tempore.”¹²

Three days later, the Convention approved the Vice President to serve as “ex officio President of the Senate.”¹³ Later, the Committee of Style shortened the title to “President of the Senate.”¹⁴ While the vice presidency attracted some attention from the delegates, the President pro tempore occasioned no debate either at the Constitutional Convention or during the state ratifying conventions.¹⁵

When does the President Pro Tempore Preside?

The President pro tempore can chair Senate proceedings under two circumstances: when the Vice President “shall exercise the Office of President of the United States” and “in the Absence of the Vice President.” The Constitution, however, does not define “Absence.” Does the President pro tempore position vanish the moment the Vice President appears in the Senate? Does it cease to exist only when the Vice President takes the presiding officer’s chair? Or does the position continue irrespective of vice presidential actions?¹⁶

For its first hundred years, the Senate construed absence as meaning absence from the chamber itself: the President pro tempore’s tenure terminating upon the arrival of the Vice President on the Senate floor. Consequently, with Vice Presidents chairing proceedings fairly regularly during the period, the President pro tempore’s time in office was often brief.¹⁷ In 1890, the upper chamber changed its mind about tenure, overturning a century of constitutional interpretation because of concerns about the disruptions to Senate proceedings caused by intermittent President pro tempore elections. Henceforth, the Senate would choose a President pro tempore who would serve irrespective of whether the Vice President was in the chamber.¹⁸

Related to the President pro tempore’s role as backup Senate presiding officer is his responsibility to fill in for the Vice President if the latter is absent from the electoral vote count under authority of the Twelfth Amendment. As of 2021, the President pro tempore had assumed these responsibilities more than one-third of the time.¹⁹

Senate Role

The President pro tempore exercises all of the powers in the chair that the Vice President does, except for breaking tie votes. Early on, it was determined that the President pro tempore—like any other Senator—would vote on all measures even though he was presiding.²⁰ He is responsible for recognizing Senators who wish to speak to the chamber, although he has less leeway than the House Speaker, who may ask about the subject of the intended remarks before recognizing the lawmaker.²¹ He also rules on points of order, though the full chamber may overrule him.²²

In addition, the President pro tempore has the authority to designate his replacement in the chair—a power the Vice President does not enjoy because it would conflict with the constitutional command that the Senate choose his replacement.²³ Moreover, unlike the Vice President, the President pro tempore has no constitutional successor to restrict his handoff of the gavel.

In the first half of the nineteenth century, Presidents pro tempore exercised some leadership in the chamber as the Senate delegated them authority to make committee assignments, but their erratic and often short tenures—coupled with the establishment and growth of Senate party institutions later in the century—doomed the office’s prospects for an enduring de facto leadership role.²⁴ The position of President pro tempore therefore should not be confused with the position of the modern Majority Leader, who is responsible for proposing the Senate’s agenda.

The chamber has authorized creation of an Acting President pro tempore to assume the chair when a President pro tempore has yet to be elected.²⁵ This temporary position reflects the Senate’s role in constitutional interpretation of the office. Similarly, the chamber has created other honorific adaptations of the title to bestow on lawmakers.²⁶

During the twentieth century, both the Vice President and the President pro tempore began to preside less often, coming to see the role as essentially optional rather than mandatory.²⁷ As a result, other than at the daily opening of Senate proceedings, the task of presiding is usually performed by junior members of the majority party.²⁸

Beginning in earnest in 1945, the Senate began to elect Presidents pro tempore based on seniority within the majority party.²⁹ With two exceptions, this tradition has continued.

Impeachment Trials

Under the Constitution, the Chief Justice presides over presidential impeachment trials in the Senate. In 2021, the question arose as to who would preside during the impeachment trial of a former president, Donald Trump. Chief Justice John Roberts decided against taking the gavel as did Vice President Kamala Harris.³⁰ Instead, President pro tempore Patrick Leahy chaired the proceedings. Presidents pro tempore had presided over impeachment trials before, but Leahy’s actions established a precedent regarding the trials of former chief executives.³¹

As it is with respect to former Presidents, constitutional text is silent as to who will preside over vice presidential impeachment trials, and history provides no guidance. Presumably, an impeached Vice President would not preside as a matter of constitutional interpretation or political prudence. Otherwise, Congress (through a statute) or the upper chamber (through a rule or parliamentary precedent) could potentially replace him with the President pro tempore.³² The Chief Justice could also assert a competing claim to preside, although that seems unlikely given Roberts’ 2021 stance.³³

Presidential Succession

Under a 1792 statute, the President pro tempore was made second in line to the presidency after the Vice President.³⁴ (See Essay No. 97.) Presidential deaths occurred in 1841, 1850, 1865, and 1881, and Vice Presidents passed away or otherwise left office in 1812, 1814, 1832, 1853, 1875, and 1885.³⁵ Each of these episodes therefore brought the President pro tempore within a heartbeat of the presidency. Yet even with these vacancies, a President pro tempore seems never to have sought nor been accorded formal recognition as Vice President or Acting Vice President, despite regular references to this effect in congressional debate.³⁶

In 1886, Congress removed lawmakers as potential presidential successors.³⁷ But, in 1947, they were reinserted with the President pro tempore positioned third in line after the Vice President and the Speaker.³⁸

The Vice President and President pro tempore have been linked together ever since the Constitutional Convention. Given the hybrid, executive-legislative nature of the vice presidency and the institutional relationship between the Senate’s two constitutional presiding officers, the President pro tempore has often displayed a curious connection to the executive branch.

During vice presidential vacancies, for example, the President pro tempore is paid the Vice President’s salary.³⁹ In fact, for a time, vice presidential funds from executive branch coffers were used to fill the pay gap.⁴⁰ In the early decades under the Constitution, no fewer than eleven Presidents pro tempore filled in for absent Vice Presidents as members of the executive branch’s Sinking Fund Commission.⁴¹ Finally, as a presidential successor, the President pro tempore has long had a White House “hotline” to facilitate communication in a crisis.⁴²

Open Question

• During a vice presidential absence, could a non-Senator President pro tempore break tie votes?

1. Thomas Jefferson, A Manual of Parliamentary Practice IX (1801); 21 Cong. Rec. 2147 (1890). ↩︎
2. Federalist No. 68 (Hamilton); Jamin Soderstrom, Comment, Back to Basics, 35 Pepp. L. Rev. 967, 984–85 (2008). ↩︎
3. N.Y. Const. of 1777, arts. XX, XXI, XXXII; Soderstrom, supra at 984–85. ↩︎
4. N.Y. Const. of 1777, art. XXI. ↩︎
5. N.H. Const., Executive Power (1784). ↩︎
6. 1 Farrand’s 292, 300. ↩︎
7. 2 Farrand’s 155, 158, 179. ↩︎
8. Id. at 172, 186. ↩︎
9. Id. at 493. ↩︎
10. Id. at 495. ↩︎
11. Id. ↩︎
12. Id. ↩︎
13. Id. at 538. ↩︎
14. Id. at 592 n.9. ↩︎
15. 2 Story’s Commentaries § 739. ↩︎
16. Joel K. Goldstein, Can the Vice President Preside at His Own Impeachment Trial?: A Critique of Bare Textualism, 44 St. Louis U. L.J. 849, 860–62 (2000). ↩︎
17. About the President Pro Tempore | Presidents Pro Tempore, United States Senate, https://perma.cc/FC5J-74PZ. ↩︎
18. 21 Cong. Rec. 2144–48, 2150–53 (1890). ↩︎
19. Joel K. Goldstein, The Ministerial Role of the President of the Senate in Counting Electoral Votes, 21 U.N.H. L. Rev. 369, 412–20 (2023). ↩︎
20. S. Journal, 2d Cong., 1st Sess. 429, (1792). ↩︎
21. Floyd M. Riddick, The United States Congress 80 (1949). ↩︎
22. Riddick’s Senate Procedure 987 (1992). ↩︎
23. Senate Rule I(3), U.S. S. Comm. on Rules & Admin., https://perma.cc/T746-DC55. ↩︎
24. Gerald Gamm & Stephen S. Smith, Last Among Equals, in Esteemed Colleagues 105–14, 129–30 (Burdett A. Loomis, ed., 2000). ↩︎
25. Senate Rule I(2), U.S. S. Comm. on Rules & Admin., https://perma.cc/T746-DC55. ↩︎
26. Christopher M. Davis, Cong. Rsrch. Serv., RL 30960, The President Pro Tempore of the Senate: History and Authority of the Office 22–23 (2015), https://perma.cc/24AR-YMSN. ↩︎
27. Senate Historical Office, Pro Tem 96 (2008); Joel K. Goldstein, Constitutional Change, Originalism, and the Vice Presidency, 16 J. Con. L. 369, 390–403 (2013). ↩︎
28. Martin B. Gold, Senate Procedure and Practice 223 n.4 (2004). ↩︎
29. Robert C. Byrd, 2 The Senate 1789–1989: Addresses on the History of the United States Senate 180 (1991). ↩︎
30. Nicholas Fandos, Patrick Leahy, the Longest- Serving Democrat, Will Preside over Trump’s Impeachment Trial, N.Y. Times (Jan. 25, 2021), https://perma.cc/75XJ-N2YR. ↩︎
31. 13 Annals of Cong. 362–66 (1804); 4 Cong. Rec. 2578 (1876); Patrick Leahy, The Road Taken 423–37 (2022). ↩︎
32. Goldstein, supra at 859–63. ↩︎
33. Id. at 860–69. ↩︎
34. 1 Stat. 239 (1792). ↩︎
35. John D. Feerick, From Failing Hands 315–16 (1965). ↩︎
36. Mitch McConnell & Roy E. Brownell II, The U.S. Senate and the Commonwealth 55–58, 294–97 (2019); Ruth C. Silva, Presidential Succession 23–24 (1951). ↩︎
37. 24 Stat. 1 (1886); Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 418–23 (2021). ↩︎
38. 3 U.S.C. § 19. ↩︎
39. 2 U.S.C. § 6111. ↩︎
40. 24 Stat. 178 (1886); 24 Stat. 600 (1887). ↩︎
41. No. 116, Sinking Fund, Dec. 4, 1797, in 9 American State Papers: Finance, Class III, at 497 (1832), https://perma.cc/GVC6-LDAM; Work of the Scientists, Wash. Times, Jan. 25, 1900. ↩︎
42. Byrd, supra at 182. ↩︎