Succession Clause for the Presidency

Article II, Section 1, Clause 6:

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The ratification of the Twenty-Fifth Amendment 1 in 1967 superseded Article I, Section 1, Clause 6. Article I, Section 1, Clause 6 provides for the “Powers and Duties” of the President to “devolve” upon the Vice President if the President is no longer able “to discharge” them due to his removal from office, death, resignation, or inability.2 Although it was unclear in the republic’s early years whether the Vice President became President or merely acted as President until a new presidential election was held, ratification of the Twenty-Fifth Amendment established incontrovertibly that the Vice President becomes President upon the President’s removal from office, death, resignation, or inability to perform the powers and duties of the office.3 In addition, Article I, Section 1, Clause 6 authorizes Congress to establish the line of succession to the presidency if both the President and Vice President are unable to discharge the “Powers and Duties” of the Presidency.4

Although the Twenty-Fifth Amendment was ratified in 1967, the succession of the Vice President to the office of President upon the President’s death or resignation has been the practice of the Republic since its earliest days. On April 4, 1841, President William Henry Harrison became the first president to die in office.5 His Vice President John Tyler, after initial hesitation, took the position that he had become the President automatically rather than “the Vice-President, now exercising the office of President,” 6 and thereby established a precedent which was subsequently followed until the Twenty-Fifth Amendment conclusively established that the Vice-President succeeds to the Presidency under the Constitution.7

In 1792, the Second Congress used its authority under Article II, Section 1, Clause 6 to provide for the succession to the Presidency in the event neither the President nor Vice President were able to perform the duties and powers of the office. Under the Succession Act of 1792,8 the succession to the Presidency passed to the President Pro Tempore of the Senate and then to the Speaker of the House of Representatives. In 1886, Congress changed the presidential succession to the heads of the cabinet departments in the order in which the departments had been established.9 In 1947, Congress adopted the Presidential Succession Act,10 which provided for the Speaker of the House to “act as President” 11 followed by the President Pro Tempore of the Senate, and then by the department heads in the order in which each department had been established.

1: See Amdt25.1 Overview of Twenty-Fifth Amendment, Presidential Vacancy.
2: U.S. Const. art. I, § 1, cl. 6.
3: U.S. Const. amend. XXV, § 1 ( “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” ). See also U.S. Const. amend. XX, § 3 ( “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice-President elect shall become President” ).
4: U.S. Const. art. I, § 1, cl. 6.
5: C. Herman Prittchett, Constitutional Law of the Federal System 274–75 (1984).
6: Id.
7: Amdt25.1 Overview of Twenty-Fifth Amendment, Presidential Vacancy.
8: Act of Mar. 1, 1792, ch. 8, § 9, 1 Stat. 239, 240 (Succession Act of 1792).
9: Act of Jan. 19, 1886, ch. 4, Pub. L. No. 49-4, 24 Stat. 1 (Succession Act of 1886).
10: Presidential Succession Act of 1947, Pub. L. No. 80-199, 61 Stat. 380 (codified as amended at 3 U.S.C. § 19).
11: Id., at § 19(1).