Should the president and vice president both die, you’d think we’d have a well-considered plan to reconstitute the government. In fact, we don’t.
Originally published on April 4, 2023 in Washington Monthly
Most of us who follow government know what the line of succession is should a president die in office. We see it at every State of the Union address: On the dais, the president stands in front with the vice president and the speaker of the House seated behind. Cabinet members occupy seats closest to the rostrum in the House chamber, except for the one secretary designated to stay away in the unlikely event that the whole place blows up and somebody has to run the country. Senate leaders, including the president pro tempore, sit in the rows behind them.
But recent history tells us that an event that kills all or most of the line of succession is not far-fetched. It came frighteningly close on September 11, 2001, when three airplanes piloted by terrorists struck the World Trade Center in New York and the Pentagon. What if the fourth and possibly a fifth plane had hit their marks? Instead, the fourth plane, which was headed for Capitol Hill, was brought down by passengers in a field in Pennsylvania. A purported fifth plane aimed at the White House may have been thwarted when one of the terrorists was arrested.
Almost 20 years later, the events of January 6, 2021, starkly reminded us again of our vulnerability. Those who attacked the Capitol that day came perilously close to being able to execute the vice president, the speaker, and Senate leaders.
But don’t we have a plan to reconstitute the government quickly after almost any catastrophe? In fact, we don’t. The laws and constitutional framework now in place address some scenarios adequately, but not the most dire ones.
The nightmare scenario is one that occurs, as the January 6 attack did, in the delicate period between Election Day and the inauguration. Imagine there’s been an ugly, contentious election that is very close, marred by occasional outbreaks of violence and threats against election workers. The outcome is being challenged in the courts. The incoming president and vice president are dead and the speaker of the House, next in line to the presidency, represents the party that narrowly lost. Both parties are determined to claim the White House. If this political tinderbox exploded in violence, potentially decapitating the national government, it would make January 6 look tame.
This sort of scenario has long alarmed serious scholars of government in both parties, perhaps none more so than Norm Ornstein and John Fortier. In 2020, they convinced the American Enterprise Institute, where they were both resident scholars, to reconvene a commission on the continuity of government as a follow-up to a similar commission they led at AEI and the Brookings Institution after 9/11. The new bipartisan 14-member Continuity of Government Commission, which began meeting in earnest in 2021, was co-chaired by Arthur B. Culvahouse, a White House counsel in the Reagan administration, and Donna Shalala, secretary of health and human services in the Clinton administration and a former member of Congress. Fortier served as executive director of both commissions and Ornstein as senior adviser. Almost nothing had been done by Congress since 2001, yet new threats continued to emerge—the anthrax mailings starting a week after 9/11 that killed five people and sickened congressional staff and members, attempted assassinations of House members of both parties, the coronavirus pandemic, and January 6.
This renewed commission, on which I served, issued its recommendations on continuity of Congress in April 2022 and on presidential succession last December, to little fanfare. A House select committee held a hearing on congressional continuity and recommended establishing a joint select committee to study it, but it would take a constitutional amendment to change the requirement to fill House vacancies by election. Problems related to presidential succession aren’t as difficult to fix, however. They only require that legislation be passed by Congress and signed into law.
The line of succession has bedeviled us since the nation’s founding. The 25th Amendment provides for the vice president to become president if a vacancy occurs, and Article II, Section 1 of the Constitution gives Congress authority to legislate who’s next in line in the case of vacancy or incapacitation of both the president and the vice president. But part of the problem has hinged on one surprisingly confusing word: “officer.” The Constitution says Congress may by law declare “what Officer shall then act as President,” but what that means has been muddied over the years by successive acts of Congress.
The first Congress considered legislation to fill out the line, but ultimately couldn’t pass a succession bill. “It would appear that at least as much time was spent debating postponing the matter entirely as was spent on debating actual candidates for filling the [vacancy],” says William diGiacomantonio, a historian and associate editor of The Documentary History of the First Federal Congress 1789–1791.
Through the Presidential Succession Act of 1792, the second Congress made the Senate president pro tempore and the speaker of the House successors, in that order. James Madison, the man who authored much of the Constitution, and was a representative from Virginia when Congress passed the act in 1792, strenuously objected to congressional members being in the line at all. Seeing the need for a strong executive, he argued in favor of Cabinet members, starting with the secretary of state. But too many in Congress detested the idea of placing Secretary of State Thomas Jefferson so close to the presidency.
The next 94 years underscored how inadequate the 1792 line of succession was. Before the 25th Amendment was passed in 1967, there was no way to replace a vice president, even though the country was without one for more than 37 of its first 178 years. Between 1792 and 1886, four presidents and five vice presidents died in office, making it clear that the short line of succession was a frail thread on which to hang the fate of the country.
There were many unnerving moments during those years. William Henry Harrison, the first president to die in office, in 1841, was only 31 days into his term when he was succeeded by Vice President John Tyler, whose policies differed sharply from Harrison’s. Tyler himself nearly died in a shipboard explosion on the Potomac that killed two of his key Cabinet members. Abraham Lincoln was assassinated only 42 days into his second term in 1865, in a plot that was meant to also kill Vice President Andrew Johnson and Secretary of State William Seward. Lincoln was succeeded by Johnson, whose anti-Reconstruction policies were dramatically at odds with those of most Republicans. The consequences of the law of succession played a role, some scholars argue, in Johnson’s being acquitted by the Senate in his impeachment trial by only one vote. Too many senators simply disliked the aggressive president pro tempore, Benjamin Wade, whose radicalism worried them and others.
Then, when Vice President Chester A. Arthur became president in 1881, after the assassination of President James Garfield, there was no one in line to succeed him; at that time, Congress wasn’t in session for months at a time, with no speaker or president pro tem in place. Recognizing the dangers of such a situation, Arthur called Congress into session to name its leaders and fill out the line. Grover Cleveland, who followed Arthur, had a vice president who died before Congress had even elected its leaders.
These events prodded Congress to at last undertake a drastic overhaul, passing the Presidential Succession Act of 1886. The act eliminated Congress from the line of succession and replaced it with Cabinet secretaries, ordered by the date on which their agencies were created: State, Treasury, War, Attorney General, Postmaster General, Navy, and Interior. It further cleared up confusion around that pesky word “officer,” declaring that the law applied “to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named.” It also eliminated the 1792 law’s provision for a special election under certain circumstances.
This would seem to have resolved the succession problem—but it didn’t. President Harry Truman had his own ideas about who should follow him should he die in office. After he became president when Franklin D. Roosevelt died in 1945, only a few months into his fourth term, Truman proposed putting the speaker of the House first in line, then the Senate president pro tem, and then members of the Cabinet. (Truman’s roots were in Congress, and he wasn’t in favor of Cabinet succession on principle.) In a message to Congress on June 19, 1945, Truman declared, “In so far as possible, the office of the President should be filled by an elective officer.”
Truman even referred back to Andrew Johnson, saying, “Some of the events in the impeachment proceedings of President Johnson suggested the possibility of a hostile Congress in the future seeking to oust a Vice President who had become President, in order to have the President Pro Tempore of the Senate become the President.” Indeed, the problem of inadvertently creating incentives for political assassination or impeachment continues to loom over the ongoing debate over succession.
The 1947 Presidential Succession Act incorporated most of what Truman wanted, and, as amended for new agencies, it prescribes the line of succession, following the vice president, that we have today (the speaker of the House; the Senate president pro tempore; and Cabinet heads in order of the establishment of their departments—State, Treasury, Defense, Attorney General, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Energy, Education, Veterans Affairs, and Homeland Security).
The second Continuity of Government Commission urged Congress to return to a Cabinet-only line of succession in order to prevent a political crisis in the midst of a national disaster. “The deaths of the president and vice president, and the succession to the presidency of a speaker of the House or a president pro tempore of the Senate from the other party, thereby negating the results of the most recent election, would be profoundly destabilizing,” says Culvahouse, the recent commission co-chair. “Given that many experts deem such legislative branch officials as ineligible to serve in the line of presidential succession, I can’t imagine a worse constitutional crisis.”
During the drafting of the 1947 law, matters were muddled again. Not only did it insert lawmakers back into the line of succession, it can be read as including acting secretaries in the line of succession. This troubles scholars who worry that it could lead to mischief or simple incompetence. Congress could eliminate this confusion simply by restoring the language of the 1886 law.
Congress also inserted a strange new provision in 1947 commonly referred to as the “bumping provision.” This would allow a Cabinet member already acting as president to be “bumped out”—replaced—by a speaker or president pro tem. This could happen, for example, if those legislative positions were vacant and later filled, or if a speaker or president pro tem decided not to resign their seat for the presidency and later changed their mind. In theory, this might mean that several different people could become president within a short period. Or Congress could employ the bumping procedure as a means of controlling the executive. In short, it’s a recipe for political chaos.
Not surprisingly, the second Continuity of Government Commission found this deeply disturbing. Would an acting secretary of state be in line ahead of the secretary of treasury or defense, because of agency precedence? And what happens if a secretary died during the crisis? “Departments have their own internal lines of succession, and the death of a department head might result in the automatic ascension of an acting secretary,” the commission report states. “The acting secretary might then claim to be in the line of succession ahead of cabinet officers from other departments.” Congress could easily clear up this confusion by excising bumping from current law.
The responsibilities of Senate presidents pro tem have changed since the 18th and 19th centuries, when the leaders were elected temporarily to preside when the vice president couldn’t. The roles of vice president and pro tem both have evolved over time. In 1890, the president pro tem became a more permanent position, and after World War II it began to be awarded to the longest-serving member of the majority party in the Senate. Yet the law of succession wasn’t altered in light of this new context, and we had 98-year-old Strom Thurmond and 92-year-old Robert Byrd only two heartbeats away from the White House. Earlier this year, Democrats broke with this tradition when 89-year-old Senator Dianne Feinstein deferred to 72-year-old Senator Patty Murray, who was next in Democratic Party seniority.
Another gap in continuity—what to do when a president is alive but unable to serve—was largely addressed by ratification of the 25th Amendment. It authorizes the vice president to trigger a process with the Cabinet to declare that the president is incapacitated. But if the vice president is also incapacitated, there is no one to start the process. This could easily have happened during the height of the COVID crisis or could occur in a future, more lethal pandemic. Using its authority under Article II’s succession clause of the Constitution, Congress should fix this by authorizing the Cabinet member next in line to initiate the process.
“Current law does not provide a procedure for deciding whether both the president and vice president are incapacitated or how they might later regain their powers and duties,” says Roy E. Brownell II, a commission member and attorney. “There is a similar legal gap when it comes to resolving whether the vice president alone is incapacitated, which has serious ramifications for the operation of the 25th Amendment.”
For the second Continuity of Government Commission, the impact of timing on succession hit home in a new way. Imagine if the 9/11 attacks had fully succeeded and had occurred in December or January after a presidential election, especially if one party had been swept out of office and the other were poised to control the White House and Capitol Hill. One Congress would have adjourned and the new one would not yet have been sworn in. No speaker or suitable president pro tem might be in place yet. As is customary, most Cabinet members in the outgoing administration would have already resigned, and the agencies would be temporarily in the hands of acting heads with little political experience or national recognition.
This perilous time between Election Day and the inauguration offers a kaleidoscope of hazards. Should the incoming president and vice president die, the existing laws governing succession could get us into a political quagmire at the worst possible time—when the party that won the national election could not take the White House because the speaker and the president pro tem would be from the losing party. “The scenarios of catastrophe are more than theoretical,” warns Norm Ornstein. The Constitution requires the sitting president to leave office on January 20, but would that hold?
Several times in our history the specter of having no president on Inauguration Day has haunted us. The most dramatic case was the election of 1876, at a time when the president wasn’t inaugurated until March. The dispute dragged on in the House until a few days before the inauguration, when it chose Rutherford B. Hayes. The issue of a vacancy on Inauguration Day was raised again by the delays in resolving the election in 2000, and once more in 2021 when the attack on the Capitol nearly thwarted the electoral vote count.
Congress ultimately may craft a solution of its own, but in the meantime, the commission’s recommendations are a start. The problems Congress needs to address vary slightly according to when the critical vacancies occur: after Election Day but before the Electoral College meets; after the electors have cast their votes in December but before the votes are counted on January 6; or after the electoral votes are counted and before Inauguration Day. But broadly speaking, Congress should ensure that the new president on January 20 is of the same party as the winning candidate who died. And when the 20th Amendment applies, Congress is not limited to choosing among “officers,” so the dispute over executive versus legislative branch succession is moot.
The recent commission recommended, in addition to a Cabinet-only line of succession, that Congress pass a special succession law to cover these three time periods and proposed two additional ideas. The first is that the House leader of the party of the winning candidates would become president on January 20. That could be either the speaker or the minority leader. Alternatively, all House and Senate members of the winning presidential candidate’s party could meet and elect a successor who would take office on Inauguration Day. The commission recommended additional language for the periods before January 6 to reassure electors that they could vote for the deceased candidates and Congress would count those votes as valid. The deceased candidates could then be declared the winners and designated as president-elect and vice president-elect. This tiered approach would culminate in a vacancy in the presidency on January 20 that would be filled by the process outlined in the new special succession law.
Over the past 20 years, two Continuity of Government Commissions and many other scholars and experts have raised the alarm about our system of presidential succession as one threat after another has put us at risk. Existing law is adequate for the straightforward and more likely event of a president dying in office in normal times. But it is not calibrated for remote yet far more devastating cases.
It is impossible to anticipate every possible way in which the complex mechanisms that govern who becomes president could be disrupted, but Congress could do much more to put into statute processes and assurances that have bipartisan support, are as unambiguous as possible, and reflect the fundamental principles of democratic rule.
We’ve been lucky for more than 200 years, with some narrow squeaks, but one day our good fortune might run out. If a calamity wipes out the president and vice president, we need to know without political or constitutional uncertainty who will lead the country. Congress has neglected these risks to our democracy for far too long.