The Presidential Succession—Congress Clause

. . . 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.

—Josh Blackman & Seth Barrett Tillman

Introduction

Under the Constitution, the Vice President is next in line to succeed the President. But what happens if the Vice President is unable to serve, and there is a double vacancy? The Framers let Congress decide “what Officer shall then act as President” if the President and Vice President are unable to serve, creating a double vacancy. This question may seem mundane, but the orderly succession of power in the executive branch is central to the government’s stability. The Presidential Succession Act of 1792 placed the Senate President Pro Tempore and the Speaker of the House in the line of presidential succession after the Vice President. The succession statute currently in force, enacted in 1947, places the Speaker first in line after the Vice President, followed by the Senate President Pro Tempore and then Senate-confirmed Cabinet officers. Some scholars contend that legislative positions like the Speaker are not “Officer[s]” as that term is used in the Presidential Succession Clause, and thus such apex legislative officers cannot stand in the line of succession. We disagree. In the view of the authors of this essay, the word “Officer” in the clause refers to all appointed positions in all three branches of government, as well as the apex presiding officers in Congress. Therefore, the Speaker and Senate President Pro Tempore may lawfully be placed in the statutory line of succession.

The Constitutional Convention

Significant debate on this clause began on September 7, 1787. (For more detail on the drafting of this clause, see Essay No. 97.) Edmund Randolph of Virginia proposed that “[t]he Legislature may declare by law what officer of the United States shall act as President in case of the death, resignation, or disability of the President and Vice President. . . .”¹ Randolph did not use “officer” standing alone and unmodified; rather, his proposal used “officer of the United States.” The Convention adopted Randolph’s proposal by a vote of 6 to 4 with one state divided.²

James Madison of Virginia recorded several somewhat cryptic comments. First, he wrote, “[i]t seemed to be an objection to [Randolph’s] provision with some, that according to the process established for chusing the Executive, there would be difficulty in effecting it at other than the fixed periods.”³ Madison referred to “some” delegates but did not identify them; he merely opined on what led some (and apparently not even most) to object.

Second, Madison noted that, “[i]t seemed to be an objection . . . with others, that the Legislature was restrained in the temporary appointment to ‘officers’ of the U.S.: ”⁴ It is unclear what (if anything) Madison intended to convey by putting “officers” in italics and quotation marks. Was he referring to “officers” standing alone and unmodified or to the language in the proposal at that time: “officer of the United States”? Furthermore, Madison did not express entire confidence in his view as to the other delegates’ objections. He started his discussion with a hedge: “It seemed.” Finally, the material enclosed by “<” and “>” was added later by Madison or under his direction but was not written by Madison during the Convention.⁵

Later in the day on September 7, the Convention approved the Appointments Clause, which provided, in part, that the President “shall nominate . . . all other officers of the United States.”⁶ The Appointments Clause defined and fixed the meaning of “Officers of the United States.”⁷ This phrase refers to appointed positions in the executive and judicial branches. But when the Succession Clause was approved earlier that morning, the meaning of “Officers of the United States” was still in flux. For these reasons, we think it likely that once the language of the Appointments Clause had been agreed to, a coordinate change was needed to the draft Presidential Succession Clause.

On September 12, the Committee of Style returned a revised draft of the Presidential Succession Clause. The draft provision specified that “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 . . . .”⁸ The committee changed “Officer of the U.S.” to “officer.” The committee may have felt compelled to make this change to keep the Succession Clause’s meaning consistent with what had been agreed to earlier. Had the Committee of Style not made that change, the meaning of the Succession Clause would have been altered: Only those who were appointed pursuant to the Appointments Clause could stand in the line of succession. In other words, the Committee of Style ensured that Congress could select from a broader category of officers to succeed to the presidency, including within the category of “officer[s]” both “officers of the United States” and also others holding federal positions that were not filled pursuant to the Appointments Clause.

The delegates made no further changes in the draft Presidential Succession Clause, and its text was adopted in its final form by the Convention.

The Presidential Succession Act of 1792

The First Congress considered a presidential succession bill.⁹ Members debated whether the Secretary of State, the Chief Justice, or the Senate President Pro Tempore should stand in the line of succession. They were not able to reach agreement, and no bill was enacted.

During the Second Congress, a new succession bill was considered.¹⁰ On November 30, 1791, the Senate approved a bill that placed the Senate President Pro Tempore and Speaker of the House in the line of succession.¹¹ When the House debated the bill on December 22,¹² Representative Jonathan Sturges of Connecticut argued that the bill was “unconstitutional” because he “could not find that the Speaker of the House, or President of the Senate pro tem. were officers of the Government in the sense contemplated by the Constitution.”¹³ Alexander White of Virginia stated that the Speaker “was not a permanent officer” and “was no more an officer of Government than every other member of the House.”¹⁴ William Giles of Massachusetts added that “if they had been considered as such, it is probable they would have been designated in the Constitution.” Rather, “these persons are not permanent.” Theodore Sedgwick, also of Massachusetts, countered that “he did not know what office could with propriety be said to be permanent.” Rather, “[i]n common parlance . . . there was no difficulty in the matter”—in other words, the Speaker and Senate President Pro Tempore were officers. Elbridge Gerry, also of Massachusetts asked, “[if] the Speaker is not an officer . . . what is he?” Gerry pointed to Article 1, Section 2, Clause 5, which provides that “the House shall choose their Speaker and other officers.”¹⁵

On January 2, 1792, Representative Hugh Williamson of North Carolina moved to strike out the Senate President Pro Tempore, which would have left only the Speaker of the House in the line of succession. His motion was defeated by a vote of 27 to 24.¹⁶ Next, the House voted on a proposal to strike out the sub-provision “and in case there shall be no President of the Senate, then the Speaker of the House of Representatives [will serve as President] for the time being.” This proposal passed by a vote of 26 to 25.¹⁷ Thus, under the House amendments, only the Senate President Pro Tempore was in the line of succession. Both of these proposals would have maintained some legislative officer succession.

The House debate on the Senate bill continued on January 7.¹⁸ This debate was not recorded in the Annals of Congress but was reported in Claypoole’s Daily Advertiser, a Philadelphia newspaper.¹⁹ Giles argued further that the Senate President Pro Tempore is “not a permanent office” but is instead “accidental and transitory, and at best is a mere auxiliary to another office.” For example, this position would not exist while Congress is in recess. The Secretary of State, however, has the “necessary relation and intimate connection” with the President. Giles “regretted the necessity of mentioning this office, because of the person [Thomas Jefferson] who accidentally fills it for the present.” Giles would have preferred the “Chief Justice, Secretary of the Treasury, with all their inconveniences, rather than” the Senate President Pro Tempore.

On February 9, the House voted to strike the provision designating the Senate President Pro Tempore to act as President. The House debated adding the Senior Associate Judge (presumably of the Supreme Court) or the Secretary of State to the line of succession.²⁰ On February 10, the House voted to place the Secretary of State in the line of succession and to remove the Senate President Pro Tempore and Speaker. This time, the vote was 32 to 22.²¹ The bill was sent to the Senate on February 15.²²

The Senate rejected the House’s changes. On February 21, the House voted to approve the Senate version by a vote of 31 to 24.²³ In this bill, the Senate President Pro Tempore was first in the line of succession after the Vice President, and the Speaker was second. Among those voting “no” was James Madison. The bill was signed by President Washington on March 1, 1792.²⁴ Under the controlling presidential succession law, only two persons were in the line of succession after the Vice President: first, the Senate President Pro Tempore, and then the Speaker of the House.

James Madison’s Letter Concerning the 1792 Act

On February 21, 1792, after the succession bill had already passed the House and Senate, James Madison wrote a letter to Edmund Pendleton, then serving as presiding officer of the Supreme Court of Appeals of Virginia. Madison wrote that there was a “point [on which] the Bill certainly errs.” He explained there were “various” objections to placing the Senate President Pro Tempore and the Speaker in the line of succession. Madison wrote, “It may be questioned whether these are officers, in the constitutional sense,” and he concluded that “[t]he House of Reps. proposed to substitute the Secretary of State, but the Senate disagreed, & there being much delicacy in the matter it was not pressed by the former.”²⁵

Professors Akhil Amar and Vikram Amar have offered this interpretation of the letter: “Madison suggested that legislators were not ‘officers, in the constitutional sense’ (again the italics are [Madison’s]) and that Congress ‘certainly err[ed]’ in allowing legislators to succeed to the Presidency.”²⁶ Thus, the Amars contend that the Second Congress unconstitutionally placed the Senate President Pro Tempore and the Speaker in the line of succession and that Madison’s letter shows that he too adhered to that position.

We are not so certain. Not all errors are constitutional. Madison’s writing that Congress “erred,” however, is not coextensive with his asserting that an act of Congress is unconstitutional. Congress can make policy blunders as well as constitutional mistakes. Madison may simply have thought it was a bad decision to put legislators in the line of succession or he may simply have been unsure about this issue. Moreover, it is also not clear whether, in reporting that Congress “erred,” Madison was putting forward his own view or reporting a view announced by others in floor debate.

No record exists to show that Madison publicly made the arguments that he flagged in his letter to Pendleton. We have no record that then-Representative Madison made any speeches on the House floor making these arguments. We also have no evidence that Madison lobbied President Washington to veto this bill on the grounds that it was unconstitutional (as he had done with respect to the Bank of the United States bill²⁷). We also have no evidence that Madison revisited this issue either during his tenure in President Jefferson’s cabinet or during his own two terms as President.

The authors of this essay think the better view is that Madison was summarizing and, to some extent, perhaps “improving” on the news of the day. He was reporting arguments he had heard during the House debate to Pendleton, who was in Virginia. That is not to say that Madison thought these arguments wrongheaded. Madison was likely sympathetic to these arguments, but it is not clear that these arguments were his arguments. It appears that Giles was the primary advocate in the House for the position that legislative officer succession was unconstitutional. Madison’s letter made points that were substantially similar to those made by Giles during the January 7, 1792, debate reported in Claypoole’s Daily Advertiser. Our view is that Madison’s letter summarized Giles’s arguments.

We should hesitate to conclude that Washington and the Second Congress enacted a facially unconstitutional law that could throw the entire country into chaos following a double vacancy. The constitutional decisions set by the Washington Administration and this early Congress are entitled to due deference. Moreover, this statute would remain in effect for nearly a century. This long-standing settled statutory history provides some further support for its validity.

The Presidential Succession Act of 1886

In December 1885, in his first annual message to Congress, President Grover Cleveland said that recent vacancies in the presidency and vice presidency had “caused public anxiety” and “require[d] immediate amendment.”²⁸ The Senate debated a new succession bill. Under this bill, only members of the President’s cabinet would stand in the line of succession after the Vice President: first, the Secretary of State; second, the Secretary of the Treasury; third, the Secretary of War; fourth, the Attorney General; and so on. Most of the discussion focused on the policy problems attendant on having legislative officers stand in line for the presidency.

It is noteworthy that Senators raised the constitutional issue of whether the Senate President Pro Tempore and the Speaker could stand in the line of succession. Senator Samuel B. Maxey of Texas did not think that “the President of the Senate or the Speaker of the House was such an officer as the Constitution contemplated.”²⁹ To support his position, Maxey cited Madison’s letter to Pendleton.³⁰ Senator George Hoar of Massachusetts found it “questionable” whether “the President Pro Tempore of the Senate or the Speaker of the House is an officer of the United States.”³¹ Senator John Morgan of Alabama said that a Senator can “scarcely be called in any sense an officer of the United States,” and is “far more an officer of his State. . . .”³² Senator William Evarts of New York argued that Senators and Representatives were “excluded” and could not stand in the line of succession because they were not officers. Evarts thought this new bill “conformed to the absolute language of the Constitution.”³³ Senator George Edmunds of Vermont replied that the Constitution expressly referred to the Senate President Pro Tempore as an officer.³⁴ And Senator Wilkinson Call of Florida argued that Senators and Representatives were Officers of the United States, since “Their sole existence and their sole function is derived entirely from their relation to the Constitution of the United States.”³⁵

The Amars contend that congressional debates illustrate that there was “widespread doubt as to the constitutionality of the 1792 Act, based in large part on the scope of the term ‘Officer.’”³⁶ We think the arguments on both sides of this issue were more balanced. In 1792, 1886, and later, members of Congress would disagree about the meaning of “officer” as used in the Succession Clause and in other constitutional provisions.

The Senate and House passed the bill. In January 1886, President Grover Cleveland signed the new Presidential Succession Act.³⁷ This law removed the Senate President Pro Tempore and the Speaker of the House from the line of succession and would remain in effect until the Presidential Succession Act of 1947.

The Presidential Succession Act of 1947

On June 19, 1945, after Victory in Europe Day, President Harry Truman sent Congress a special message urging members that “this is an appropriate time . . . to reexamine the question of the Presidential succession.”³⁸ Truman recognized that the 1886 Presidential Succession Act effectively granted him, in the case of a double vacancy, the “power to nominate the person who would be [his] immediate successor in the event of [his] own death or inability to act.” Truman did not “believe that in a democracy this power should rest with the Chief Executive.” Instead, Truman was of the view that “the office of the President should be filled by an elective officer” and not by a Cabinet member. (Several members of President Franklin Roosevelt’s cabinet had never held elective office.) Truman recognized that the Speaker is “elected to be the presiding officer of the House by a vote of all the Representatives of all the people of the country.” In this capacity, the Speaker “is the official in the Federal Government, whose selection next to that of the President and Vice President, can be most accurately said to stem from the people themselves.” Truman thought the Senate President Pro Tempore should be second in line because Senators “are not as closely tied in by the elective process to the people as are the members of the House of Representatives.” If the Speaker and Senate President Pro Tempore cannot serve, Truman acknowledged, “then the succession might pass to the members of the Cabinet as now provided.”³⁹

Two years later, Congress approved the Presidential Succession Act of 1947.⁴⁰ As Truman requested, the Speaker of the House was placed first in line, and the Senate President Pro Tempore was placed second. These legislative officers were followed by Cabinet officers: the Secretary of State, Secretary of the Treasury, Secretary of War (now Defense), Attorney General, and so on.

Like the original 1792 statute, the current presidential succession act, enacted in 1947, also places the two presiding congressional officers in the line of succession after the Vice President. However, under the 1947 act, the order is reversed. After the Vice President, the Speaker is first and the Senate President Pro Tempore is second. After the two presiding congressional officers, Congress selected the Secretary of State as next in the line of succession, followed by other Cabinet members.

Several members of Congress doubted the bill was constitutional. They contended that the Speaker and Senate President Pro Tempore were not “officers” for purposes of the Succession Clause.⁴¹ Representative Clarence Hancock of New York argued that the Speaker “is not an officer of the United States.”⁴² Representative John Gwynne of Iowa argued that the Incompatibility Clause demonstrates that members of Congress cannot be officers.⁴³

Other members argued that legislative officer succession was constitutional. Representative Estes Kefauver of Tennessee countered that “[t]he Constitution does not say that [the Speaker] must be an officer of the executive branch in order to be eligible to be named in the line of succession.” He added that “[n]owhere in the debate in 1792 was the argument made that the Speaker of the House and the President Pro Tempore were not officers within the meaning of the Constitution.”⁴⁴ Representative Mike Monroney of Oklahoma argued that legislative officer succession was constitutional. He argued that the issue had been “resolved” because the 1792 Act was passed “only a few short years after the Constitution had been written” and “stood for almost 100 years.”⁴⁵ Representative Francis May of Pennsylvania observed that the “first officer mentioned in the Constitution is the Speaker of the House of Representatives.”⁴⁶

Acting Attorney General Douglas W. McGregor wrote a letter defending the law’s constitutionality.⁴⁷ He explained that the issue was whether “the Speaker of the House and the Senate President pro tempore . . . are officers within the meaning of” the Succession Clause, and not whether a rank-and-file member of Congress is a civil officer of the United States for purposes of the Impeachment Clause. McGregor added that the word “officer” in the Succession Clause is used “without qualification.” In other words, the Attorney General distinguished between an “officer,” as that term is used without modification, and an “officer of the United States.” He further wrote that the word “officer” “presumably includes not only officers of the executive branch of the Government, but also officers of the judicial and legislative branches.” McGregor also pointed to the 1792 statute: “This law represents a construction of article II by an early Congress, whose views of the Constitution have long been regarded as authoritative, and reflects a long-continued acquiescence in such a construction.”

The Amars described the Attorney General’s reasoning as “shoddy.”⁴⁸ They wrote that McGregor, writing in 1947, “failed to address the textual and structural criticisms of that construction raised” in their 1995 article.⁴⁹

Is the Presidential Succession Act of 1947 Constitutional?

The Amars argued that the Presidential Succession Act of 1947 is unconstitutional: that “Officer,” as used in “the Succession Clause, “is merely shorthand for any of the[] . . . longer formulations” of the Constitution’s “office”- and “officer”-language, such as “Officers of the United States” and “Office . . . under the United States.”⁵⁰ The Amars explained that “[a]s a textual matter,” the varied references to officers of the United States and office under the United States “seemingly describe[] the same stations.”⁵¹ They did entertain the possibility that the Framers drew a “civil/military distinction” among different types of officers but posited that “the modifying terms ‘of,’ ‘under,’ and ‘under the Authority of’ are essentially synonymous.”⁵² The Amars concluded that the Constitution’s divergent “office” and “officer” language creates a “global officer/legislator distinction.”⁵³ More than a few prominent scholars have adopted their position either in whole or in part.⁵⁴

Our view is that the word “officer” or “office,” standing alone and unmodified, simply refers to a “position” in the national government created by the Constitution, whether appointed or elected. Two categories of positions can be considered an “Officer” for purposes of the Succession Clause.⁵⁵ First, all holders of “Office[s] . . . under the United States”—that is, all appointed positions in all three branches of government—could lawfully be placed in the statutory line of succession to the presidency. Second, an “Officer” of “the Government of the United States”⁵⁶ also could lawfully be placed in the statutory line of succession. We contend that the apex presiding officers referred to in the Constitution—specifically, the “Officers” of the “Government of the United States”—can succeed to the presidency. This category includes the Speaker of the House, the Senate President Pro Tempore, and the Chief Justice. It also includes the President and Vice President.

Of course, in the event of a double vacancy, it makes no sense to put the President and Vice President in the line of succession. We do not think that rank-and-file members of Congress—Senators and Representatives—could lawfully be placed in the statutory line of succession. They are not apex presiding officers. In fact, they are not “officers” of any stripe. Thus, in our view, the provision of the Presidential Succession Act of 1792 as well as the successor provision in the Presidential Succession Act of 1947, placing apex presiding legislative officers in the line of succession, were constitutional.⁵⁷

Open Questions

• In October 2020, President Donald Trump was hospitalized for three days because of COVID-19.⁵⁸ Vice President Michael Pence had recently been exposed to Trump. At the time, there was a robust debate about who would have become President in the event of a double vacancy: Speaker Nancy Pelosi, a Democrat, or Secretary of State Mike Pompeo, a Republican.⁵⁹ Some leading constitutional scholars endorsed the Amars’ 1995 view, and some further suggested that the Presidential Succession Act of 1947 was unconstitutional.⁶⁰ Professor John Yoo found the Amars’ view “persuasive[].”⁶¹ Yoo wrote that Pompeo, not Pelosi, would become President in the case of a double vacancy. Professor Jack Goldsmith likewise observed that both Pelosi and Pompeo “could make competing claims to the presidency.” How would the courts have adjudicated this issue?
• The Presidential Succession Act of 1947 requires that the officer elevated to President must resign his current position. Is this requirement constitutional? If it is not constitutional, can this resignation provision be severed from the remainder of the 1947 act, including the sections which elevate a would-be successor?
• If the Speaker of the House or the Senate President Pro Tempore succeeds to the presidency, does the Succession Clause require that he resign his position as a presiding legislative officer and as a member of Congress? Would he have to resign by virtue of the Incompatibility Clause, or would his resignation take effect by operation of law when the Speaker or Senate President Pro Tempore assumes the presidency?
• If the Secretary of State succeeds to the presidency, does the Constitution preclude his holding both positions concurrently?
• Could Congress place a recess appointee in the statutory line of presidential succession? Is a recess appointee an “Officer” for purposes of the Succession Clause?
• Could Congress place an acting officer of the United States in the statutory line of presidential succession? Does it matter whether the acting officer also holds an office appointed by the President and confirmed by the Senate but that other office is not in the statutory line of succession? Is an acting officer an “Officer” for purposes of the Succession Clause?
• Under the 1947 act, in the case of a double vacancy, if the Speaker of the House and the Senate President Pro Tempore choose not to accept the presidency, a Cabinet member can accept the presidency. What happens if the Speaker or Senate President Pro Tempore changes his or her mind? Can the Cabinet member be bumped? Is the 1947 act’s bumping provision constitutional?
• As a policy matter, is legislative officer succession desirable? There was legislative officer succession under the Delaware Constitution of 1776 and the New York Constitution of 1777.⁶² Some scholars describe it as a “nightmare.”⁶³ The authors of this essay counter that the “long-standing policy objection[s]” to legislative officer succession are “dangerously misguided.”⁶⁴ Seth Barrett Tillman has suggested placing legislative officers at the bottom of the statutory line of succession to function as a flexible backstop if all the Cabinet members (that is, the fixed line of succession) were to die, resign, become incapacitated, etc.⁶⁵
• Akhil Amar has argued that, although legislative officer succession is unconstitutional, it may be permissible “in very, very highly unusual situations.”⁶⁶ Dean John Feerick contended that the issue is “ambiguous,” and he was “not entirely convinced that [legislative officer succession] is unconstitutional.”⁶⁷ Professor Joel Goldstein suggests that “‘Officer’. . . may have been understood to have a broader meaning than ‘Officer of the United States,’” and the Speaker could be in the former category even if not in the latter.⁶⁸ Majorities of the House and Senate in the Second Congress, as well as in 1947, enacted a bill placing the two presiding legislative officers in the line of succession after the Vice President. Indeed, under the 1792 act, the two presiding legislative officers were the entire line of succession after the Vice President, and President Washington signed that bill.

1. 2 Farrand’s 532, 535. ↩︎
2. Id. at 535. ↩︎
3. 2 Farrand’s 535. ↩︎
4. Id. ↩︎
5. 1 Farrand’s xviii–xix. ↩︎
6. 2 Farrand’s 533, 539. ↩︎
7. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 353 (2023). ↩︎
8. 2 Farrand’s 598–99. ↩︎
9. Annals of Cong., 1st Cong., 3d Sess. 1911–15 (1791). ↩︎
10. John D. Feerick, From Failing Hands: The Story of Presidential Succession 58–59 (1965); Ruth C. Silva, Presidential Succession (1951); Ruth C. Silva, The Presidential Succession Act of 1947, 47 Mich. L. Rev. 451, 475 (1949). ↩︎
11. Annals of Congress, 2d Cong., 1st Sess. 36–38 (1791). ↩︎
12. Id. at 278. ↩︎
13. Id. at 281. ↩︎
14. Id. ↩︎
15. Id. ↩︎
16. Annals of Congress, 2d Cong., 1st Sess. 302–03 (1792). ↩︎
17. Id. at 303. ↩︎
18. Id. at 302–03, 315. ↩︎
19. Philadelphia, Jan. 10. House of Representatives of the United States, Friday, January 7, The Mail, or Claypoole’s Daily Advertiser, Jan. 7, 1792, at 2–3, https://perma.cc/22J7-HLH2. ↩︎
20. Annals of Cong., 2d Cong., 1st Sess. 401 (1792). ↩︎
21. Id. at 402. ↩︎
22. Id. at 406–07. ↩︎
23. Id. at 417–18. ↩︎
24. 1 Stat. 239 (1792). ↩︎
25. Letter from James Madison to Edmund Pendleton (Feb. 21, 1792), https://perma.cc/S8LZ-A442. ↩︎
26. Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 116 (1995). ↩︎
27. Message from James Madison to George Washington (Feb. 21, 1791), https://perma.cc/K4AH-VHKT. ↩︎
28. 8 Messages and Papers of the Presidents (Dec. 8, 1885), https://perma.cc/9NJL-LX6E. ↩︎
29. 17 Cong. Rec. 214 (1885), https://perma.cc/B6GB-RCNQ. ↩︎
30. Id. at 215. ↩︎
31. Id. at 221. ↩︎
32. Id. at 222. ↩︎
33. Id. at 250. ↩︎
34. Id. at 251. ↩︎
35. Id. at 224. ↩︎
36. Amar & Amar, supra at 134. ↩︎
37. 24 Stat. 1. ↩︎
38. President Harry S. Truman, Special Message to the Congress on the Succession to the Presidency (June 19, 1945), https://perma.cc/GP57-3MYG. ↩︎
39. Id. ↩︎
40. 61 Stat. 380. ↩︎
41. 91 Cong. Rec. 7011–12, 7015, 7017–18, 7022 (1945). ↩︎
42. Id. at 7015. ↩︎
43. Id. at 7017. ↩︎
44. Id. at 7016. ↩︎
45. Id. at 7012. ↩︎
46. Id. at 7013. ↩︎
47. 93 Cong. Rec. 8621–22 (1947), https://perma.cc/53DF-S3SG. ↩︎
48. Amar & Amar, supra at 134. ↩︎
49. Id. at 134 n.131. ↩︎
50. Id. at 115. ↩︎
51. Id. at 114. ↩︎
52. Id. at 115. ↩︎
53. Id. at 117. ↩︎
54. Joshua A. Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 280 n.68 (2007); Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 135–40, 141–45, 146–53, 154–59 (2008); Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 35, 41–42 (2009); Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209, 287–94 (2014); Vasan Kesavan, The Very Faithless Elector?, 104 W. Va. L. Rev. 123, 129 n.28 (2001). ↩︎
55. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 414–20 (2021). ↩︎
56. Art. I, § 8, cl. 18. ↩︎
57. Josh Blackman & Seth Barrett Tillman, The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020, The Atlantic (Nov. 20, 2019), https://perma.cc/8EES-3NTX. ↩︎
58. Christina Morales et al., A Timeline of Trump’s Symptoms and Treatments, N.Y. Times (Oct. 14, 2020), https://perma.cc/3HZM-7WS6. ↩︎
59. Josh Blackman, Do Professors Akhil and Vikram Amar Still Think the Presidential Succession Act Is Unconstitutional?, Volokh Conspiracy (Oct. 3, 2020), https://perma.cc/D2JW-6L5U. ↩︎
60. Nicholas Fandos & Nick Corasaniti, What If Trump Can’t Run? Many Steps Are Clear, but Some Are Not, N.Y. Times (Oct. 2, 2020), https://perma.cc/A4DG-3834. ↩︎
61. John Yoo, A Winding Constitutional Path from Trump to Pence to Pompeo, Wall St. J. (Oct. 2, 2020), https://perma.cc/N9AF-N9ZJ. ↩︎
62. Del. Const. of 1776, art. VII; N.Y. Const. of 1777, art. XXI. ↩︎
63. Jack Goldsmith & Ben Miller-Gootnick, A Presidential Succession Nightmare, Lawfare (Mar. 25, 2020, 1:38 PM), https://perma.cc/3T4A-GBSE. ↩︎
64. Seth Barrett Tillman, Why Strict Cabinet Succession Is Always Bad Policy: A Response to Professor Jack Goldsmith and Ben Miller-Gootnick, Harv. Nat’l Sec. J. Online (Apr. 8, 2020), https://perma.cc/D9V9-DA8F. ↩︎
65. Id.; Seth Barrett Tillman, A Defense of the Legislative “Officer” Succession Provisions, 91 Fordham L. Rev. Online 23 (2022), https://perma.cc/KK7X-BDG9. ↩︎
66. Presidential Succession Act: Hearing Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 108th Cong. 52 (2004), https://perma.cc/RX6G-BR4N. ↩︎
67. John D. Feerick, A Response to Akhil Reed Amar’s Address on Application and Implications of the Twenty-Fifth Amendment, 47 Hous. L. Rev. 41, 62 (2010); John D. Feerick, Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment, 79 Fordham L. Rev. 907, 944 (2011). ↩︎
68. Joel K. Goldstein, Akhil Reed Amar and Presidential Continuity, 47 Hous. L. Rev. 67, 86 (2010); Joel K. Goldstein, Taking from the 25th Amendment: Lessons in Ensuring Presidential Continuity, 79 Fordham L. Rev. 959, 1022 (2010). ↩︎