The Presidential Succession—Devolve Clause

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.

—John D. Feerick

Introduction

The Presidential Succession Clause has a long history in America. The delegates to the Constitutional Convention drew on that history in developing Article II, Section 1, Clause 6 of the Constitution. In July 1965, Congress proposed the Twenty-Fifth Amendment that became part of the Constitution in February 1967.¹ The amendment added to the Constitution a procedure for filling a vacancy in the Vice Presidency and set forth procedures enabling a President to declare his own inability and a process by which the Vice President and the principal officers of the executive departments may declare a President unable to discharge the powers and duties of office.²

History Before 1787

The idea of executive succession was a formative part of American colonial governance.³ According to one estimate, nearly one-third of colonial governors died in office. Others became ill, resigned, were removed, or became incapacitated. Governors were often absent from their colonies, traveling considerable distances. These contingencies necessitated the choice of someone to assume the responsibilities of office. This role usually fell to a deputy or lieutenant governor, a member of the governor’s council, or even the council itself.

In May 1754, commissioners from nine colonies met to consider issues regarding Indian affairs and military activities. They adopted a Plan of Union drafted by Benjamin Franklin that called for a council of delegates selected by colonial assemblies and a president general selected by the king. The plan also provided a succession policy: Upon the death of the President General of the Grand Council, the Speaker of the Council would assume the President’s powers and duties until the king decided otherwise.⁴ The plan was rejected by the colonial assemblies.⁵

Following independence, the state constitutions provided for executive succession.⁶ The state constitutions of Massachusetts and New York offered important guidance to the Framers in crafting the succession provision. Massachusetts’s constitution provided that the lieutenant governor would perform the duties of the governor in cases of “death, absence from the commonwealth, or otherwise” and further stated that if both offices were vacant for these reasons, the governor’s council would “have full power and authority to do and execute all and every such acts, matters, and things, as the governor or the lieutenant-governor might or could, by virtue of this constitution, do or execute, if they, or either of them, were personally present.”⁷ New York’s constitution provided that “in case of the impeachment of the Governor or his removal from office, death, resignation, or absence from the state, the Lieutenant-Governor shall exercise all the power and authority” of “the office of Governor until another be chosen, or the Governor absent, or impeached, shall return or be acquitted.”⁸ The Articles of Confederation did not include any provision concerning executive succession.

The Constitutional Convention

Neither the Virginia Plan nor the New Jersey Plan contained an executive succession provision.⁹ Instead, both plans provided that the legislature would choose the executive or co-executives.¹⁰

Alexander Hamilton of New York offered a plan calling for three branches of government: an executive chosen by electors of the people, a bicameral legislature consisting of an assembly and a senate, and a judiciary. The executive was to serve for life with a provision for succession: In the event of his death, resignation, or removal from office, the President of the Senate would exercise the powers of the national executive until a successor was appointed.¹¹ The records of the Convention do not reflect that any serious consideration was given to Hamilton’s plan, although its presentation appears to have taken several hours.¹²

On August 6, 1787, the Committee of Detail presented its report to the Convention. Under this proposal, the legislature would choose the President, and in the event of the President’s “removal . . . death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate [would] exercise those powers and duties, until another President of the United States be chosen, or until the disability of the President be removed.”¹³

On August 27, the succession provision came up for discussion. Delegates debated who should be the President’s immediate successor. Gouverneur Morris of Pennsylvania objected to the Senate’s president standing in the line of succession. Morris favored the Chief Justice of the United States.¹⁴ Hugh Williamson of North Carolina suggested that the legislature should have the power to choose “occasional successors.”¹⁵

John Dickinson of Delaware seconded a motion by Williamson to postpone discussion of the Committee of Detail’s succession provision, noting “that it was too vague. What is the extent of the term ‘disability’ & who is to be the judge of it?”¹⁶ There is no recorded response to Dickinson’s questions.

On September 4, the Committee of Eleven proposed that there be an office of Vice President and that the President and Vice President should be chosen by electors.¹⁷ The Committee’s report also provided that, in the event of the President’s “removal . . . death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed.”¹⁸

On September 7, Edmund Randolph of Virginia moved to add a provision for executive succession specifying that “[t]he legislature may declare by law what officer of the U.S. shall act as President in case of the death, resignation, or disability of the President and Vice-President” and that “such officer shall act accordingly until the time of electing a President shall arrive.”¹⁹ Madison objected to the absence of a provision for filling a vacancy by means of a special election, suggesting as a provision “until such disability be removed or a President shall be elected.”²⁰ Some delegates expressed concern that Congress was limited as to whom it could choose as a successor. Randolph’s proposal, with Madison’s amendment, was approved by a vote of 6 to 4.²¹

On September 12, the Committee of Style returned a draft of the succession provision. It provided that:

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 the period for chusing another president arrive.⁰

The Committee made several changes.²² First, “Officer of the U.S.” was changed to “officer.” (See Essay No. 97.) Second, “the vice-president shall exercise those powers and duties” was changed to “the same shall devolve on the Vice President.” Third, the Committee included Madison’s proposal “until such disability be removed, or a President shall be elected” but placed these words only after the provision providing for successors beyond the Vice President.²³ After reviewing the step-by-step development of the succession provision at the Constitutional Convention, it is clear to me²⁴ that the words “the same shall devolve” referred to the “powers and duties of the office,” and the words limiting tenure “until the disability be removed” referred to all successors, including the Vice President.²⁵

The delegates made no further changes in the Committee’s report, which was adopted by the Convention.

The Ratification Debates

The Succession Clause was mentioned only in passing in Federalist No. 68. Hamilton remarked on the importance of the Vice President, who “may occasionally become a substitute for the President, in the supreme Executive magistracy.”

Likewise, in the state ratification conventions, discussion of the vice presidency focused principally on the role of the Vice President as President of the Senate. There was limited discussion of issues related to presidential succession.²⁶ All of the drafts before the Committees of Detail and Style were explicit in regard to a Vice President’s status as an Acting President in a case of inability. Another part of the original Constitution is consistent with this view. Article I, Section 3, Clause 5 provided that “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.”²⁷

However, the text created ambiguities. Article II, Section 1, Clause 6 provides that “in Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of Office, the Same shall devolve on the Vice President.” What is the Vice President’s status upon succession? The provision states that “the Same shall devolve on the Vice President.” To what words does “the Same” refer, the presidency’s “Power and Duties” or the “Office” itself? This distinction is important. If a Vice President took over the “Office,” a President who suffered an “Inability” might not be able to come back to power upon recovery. There is another textual uncertainty: The Succession Clause does not provide a definition of “Inability” and does not create a process to declare a President unable to perform the powers and duties of the office.

The Presidential Succession Act of 1792

In 1792, the Second Congress passed and President George Washington signed the first presidential succession act. This law placed the President pro tempore of the Senate and the Speaker of the House of Representatives next in the line of succession after the Vice President. The statute also provided for a special election to fill both offices when there was a dual vacancy.²⁸

For the five decades following ratification, there was no application of the Succession Clause or the 1792 law, but there were several close calls. Both of the Vice Presidents under President James Madison died in office: George Clinton in 1812 and Elbridge Gerry in 1814.²⁹ Moreover, in 1813, Madison suffered from a serious illness.³⁰ Had Madison succumbed to his illness, with Gerry dying the following year, there would have been a double vacancy. In late 1832, Vice President John C. Calhoun resigned with less than three months left on his term to fill a Senate vacancy.³¹ On March 4, 1841, President William Henry Harrison was inaugurated. One month later, on April 4, 1841, he died in office from pneumonia. Vice President John Tyler was notified by messenger the next day and immediately traveled to Washington by horseback and boat. Tyler arrived on April 6 and was sworn in as President by the chief judge of the Circuit Court for the District of Columbia. Questions were raised immediately concerning his succession to the title and office of the President. Former President John Quincy Adams and others asserted that under the succession provision, he was only an Acting President serving as Vice President.

Shortly after the Twenty-Seventh Congress convened for a special session in May 1841, both houses debated the issue. Several members argued that the Vice President was only acting as President and could become President only through election and not by succession.³² Others argued that the Vice President takes over for an immobilized President, including succeeding to the title. Ultimately, both houses passed a resolution accepting Tyler’s claim and appointed a committee to call on him as President.³³ During this debate, concern was expressed as to how a case of inability would be handled.³⁴

The rest of the nineteenth century repeated the earlier history. Three Presidents died in office: Zachary Taylor died from an illness in 1850, Abraham Lincoln was assassinated in 1865, and James A. Garfield was shot in 1881.³⁵ Garfield died after eighty days of wavering between life and death. During that period, Garfield’s Cabinet encouraged Vice President Chester A. Arthur to assume presidential power. However, Arthur hesitated because of the ambiguities surrounding the succession provision.³⁶ Several Vice Presidents also died in office during the second half of the nineteenth century: William Rufus DeVane King in 1853, Henry Wilson in 1875, Thomas Hendricks in 1885, and Garret Hobart in 1899.³⁷

The Presidential Succession Act of 1886

After Arthur became President in 1881, he asked Congress to consider the legal and constitutional issues surrounding the succession provision.³⁸ The Presidential Succession Act of 1886 removed the legislative leaders from the line of succession and substituted in their place the heads of the executive departments.³⁹ The statute did not address presidential inability, nor did it create a mechanism for filling a vacancy in the vice presidency. Both areas remained unresolved.

In the six decades that followed, there would be several more vacancies and disabilities in the executive branch.⁴⁰ In 1901, President William McKinley was assassinated. In 1912, Vice President James S. Sherman died. In 1919–20, President Woodrow Wilson suffered a severe incapacity, or inability in office. Wilson’s Cabinet made some internal arrangements to handle the functioning of the presidency, which led Wilson to dismiss his Secretary of State.⁴¹ In 1923, President Warren G. Harding died from illness. In 1945, President Franklin D. Roosevelt died from illness. Less than two hours after his death, Chief Justice Harlan Fiske Stone administered the presidential oath of office to Vice President Harry S. Truman, who immediately convened a meeting of his Cabinet, asking them to continue to function in their positions.⁴² On June 19, 1945, in a special message to Congress, Truman advocated for a change in the 1886 succession law, stating that the next in line to the presidency should be filled “insofar as possible” by an elective officer such as the Speaker of the House of Representatives. Bills were introduced in Congress to achieve this goal, and after congressional hearings and debates in both houses, the succession law of 1947 was passed and signed by President Truman on July 18.⁴³

The Presidential Succession Act of 1947

The Presidential Succession Act of 1947 remains in effect to this day.⁴⁴ The statute placed the Speaker of the House and the Senate President pro tempore as next in the line of succession after the Vice President, followed by the heads of the executive departments in the order of their creation. This statute still did not address the issue of presidential inability or provide a mechanism to fill a vacant vice presidency, but it did provide for succession in a case of inability and limited the term of service to the duration of the disability.

In the late 1950s, after President Dwight D. Eisenhower had suffered three disabling illnesses, the Eisenhower Justice Department attempted to clarify the Constitution on the subject of inability, but these efforts failed to receive approval by Congress. In 1958, President Eisenhower and Vice President Richard Nixon reached an informal framework by letter agreement for handling a future case of inability. Similar writings were adopted by President John F. Kennedy and Vice President Lyndon Johnson in 1961 and by President Johnson and Speaker John McCormack in 1964.⁴⁵ The death of President Kennedy on November 22, 1963, incentivized Congress to focus again on the adequacy of Article II, Section 1, Clause 6.

The Twenty-Fifth Amendment

The Twenty-Fifth Amendment (see Essay Nos. 212–214) was ratified in 1967 and resolved many of the issues left unresolved by the Succession Clause. Section 1 of the amendment adopts the Tyler precedent: The Vice President “shall become President” if the President leaves office permanently because of removal, death, or resignation. However, when the President is “unable to discharge the powers and duties of his office,” the Vice President is to discharge them as “Acting President.” The “Acting President” designation allows an unable President to retain the office of the presidency and return to power upon recovery.

The Twenty-Fifth Amendment did not define the word “Inability” in the Succession Clause. Instead, it created processes for declaring the President unable to perform the powers and duties of office. Section 3 empowers a President to declare voluntarily that he is unable to perform the powers and duties of office. Section 4 empowers the Vice President, acting either with a majority of the Cabinet or with an “other body” created by Congress, to declare the President “unable to discharge the powers and duties of his office.”

Open Questions

• The Twenty-Fifth Amendment did not treat inability cases involving a dual inability of both the President and Vice President, an inability of the President when there was no Vice President, or an inability of an Acting President. A political judgment was made that to delve into these additional situations would have doomed the whole effort of providing for a vice presidential vacancy and cases of presidential inability.

1. See John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Applications (3d ed. 2014). ↩︎
2. Id. ↩︎
3. John D. Feerick, From Failing Hands: The Story of Presidential Succession 23–39 (1965), https://perma.cc/GPL4-FRTG. ↩︎
4. Albany Plan of Union, § 22 (1754), https://perma.cc/5RA8-9MYH. ↩︎
5. Feerick, From Failing Hands, supra at 35. ↩︎
6. Mass. Const. of 1780, ch. II, § 3, art. VI; N.Y. Const. of 1777, arts. XX–-XXI. ↩︎
7. Mass. Const. of 1780, ch. II, § 3, art. VI. ↩︎
8. N.Y. Const. of 1777, art. XX. ↩︎
9. 1 Farrand’s 20–23, 242–45. ↩︎
10. Id. at 21, 244. ↩︎
11. Id. at 292. ↩︎
12. 1 Farrand’s 20–23, 92. ↩︎
13. 2 Farrand’s 186. ↩︎
14. Id. at 427. ↩︎
15. Id. ↩︎
16. Id. ↩︎
17. Id. at 493–94. ↩︎
18. Id. at 498–99. ↩︎
19. Id. at 535. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Id. at 599; William M. Treanor, The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, 120 Mich. L. Rev. 1, 78–83 (2021). ↩︎
23. 2 Farrand’s 598–99. ↩︎
24. Feerick, From Failing Hands, supra at 51. ↩︎
25. Id. ↩︎
26. Id. at 51–56. ↩︎
27. Id. at 50–51; Art. I, § 3, cl. 5. ↩︎
28. Presidential Succession Act of 1792, ch. 8, 1 Stat. 239 (repealed 1886). ↩︎
29. Feerick, From Failing Hands, supra at 79–84. ↩︎
30. Feerick, The Twenty-Fifth Amendment, supra at 4–5. ↩︎
31. Feerick, From Failing Hands, supra at 85–86. ↩︎
32. Cong. Globe, 27th Cong., 1st Sess. 3–5 (1841). ↩︎
33. Feerick, From Failing Hands, supra at 89–96. ↩︎
34. Id. at 95–96. ↩︎
35. Feerick, The Twenty-Fifth Amendment, supra at 8–9. ↩︎
36. Id. ↩︎
37. Id. at 314. ↩︎
38. Id. at 10. ↩︎
39. Presidential Succession Act of 1886, ch. 4, 24 Stat. 1 (repealed 1947). ↩︎
40. Feerick, The Twenty-Fifth Amendment, supra at 14, 16–19, 24. ↩︎
41. Id. at 198–199. ↩︎
42. Feerick, From Failing Hands, supra at 198. ↩︎
43. Id. at 198–99. ↩︎
44. 61 Stat. 380. ↩︎
45. Feerick, From Failing Hands, supra at 229. ↩︎