By Dr. Brian Blodgett
Faculty Member, Homeland Security, American Military University
In ABC’s and Netflix’s “Designated Survivor,” fictional character Tom Kirkman (played by actor Kiefer Sutherland) becomes President after a terrorist attack kills the President, Vice-President, and the entire chain of succession, leaving only one person alive to take over the leadership of our nation. Kirkman, who is the Secretary of Housing and Urban Development and the thirteenth in line of succession, is sworn in as the new president.
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While Kirkman was the only remaining government official who could become President, what would occur today if something were to happen to both the President and the Vice President? The ongoing threat of COVID-19 and the recent diagnosis of President Donald Trump makes this scenario necessary to consider.
But the U.S. Constitution does not provide firm details on who is next in the line of succession beyond the Vice President. It only notes that Congress has the power to determine further succession and that the person is to be an “officer.”
The Presidential Succession Act of 1792
When Congress met in 1792 to determine the line of succession, there was considerable debate and disagreement among its members. The House wanted the duty to fall to the cabinet’s senior member, the Secretary of State.
However, the Senate, which was controlled by Federalists, did not want Thomas Jefferson, the leader of the anti-federalists and the current Secretary of State, to be so close to the presidency. Instead, some in the Senate considered the Senate’s President pro tempore, the most senior Senator, as the best choice, and believed that the Senator could actually serve in both positions at the same time. Others wanted the Chief Justice of the Supreme Court to be next in line for the presidency.
Ultimately, Congress passed the Presidential Succession Act of 1792, which made the President pro tempore first in line, followed by the Speaker of the House of Representatives. Since this act required a special election, the position would only be temporary unless the vacancy occurred in the last year of a term.
There continued to be debate on the inclusion of these two individuals in the years following the passing of the Presidential Succession Act. James Madison argued that the Constitution gave Congress the power to specify “officers” from the executive branch, and members of Congress were not eligible because they were elected by the people and not appointed by the current president.
The Presidential Succession Act of 1886
When President James Garfield was assassinated, Chester Arthur became President. Arthur’s succession to the Presidency caused problems, because both the Speaker of the House and the President pro tempore positions were vacant. Those vacancies were due to the timing of Garfield’s death between the adjourning and convening of the House, as well as political strife in the Senate. As a result, the Senate was not able to elect a President pro tempore.
Later, Congress passed the Presidential Succession Act of 1886, which removed the President pro tempore and the Speaker from the list of successors and replaced them with presidential cabinet officers in chronological order of their department’s creation. This legislation not only ensured that the Presidency would be filled by a person of the same party as the President, but it also eliminated the need for a special election.
20th Amendment Ensures a New President if the President-Elect Dies before Inauguration
In 1933, the ratification of the 20th Amendment to the Constitution clarified the presidential succession. According to this amendment, if the President-elect dies before being inaugurated, then the Vice President-elect becomes President-elect.
After the death of President Franklin D. Roosevelt, Harry S. Truman became President in 1945. In June, he proposed to Congress that they revise the order of succession and again add in the President pro tempore and the Speaker of the House in line behind the President and the Vice President but ahead of Cabinet officials. There are rumors that Truman wanted this change because of his close friendship with the Speaker of the House, Sam Rayburn.
Truman also requested that a special election be once again added upon the death of the President and Vice President. The House voted and passed a bill that same year but without the special election. The Senate did not take any action during the balance of its time.
When the 80th Congress came into session, President Truman again called for legislation to further clarify the line of presidential succession. But like the Congress of the 1700s and the 1800s, Congress began a debate on whether the Speaker of the House and the President pro tempore were “officers” as intended by the Constitution. After serious debate, the Senate and then the House passed the Presidential Succession Act of 1947, which Truman signed into law.
Under 3 U.S.C. §19, if the President and Vice President are unable to discharge their powers and duties, then the “Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.” Furthermore, if “there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.”
In addition, if there is no Speaker or President pro tempore, “then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.” Note that the Secretary of Homeland Security was added upon the creation of the cabinet position.
Are Congressional Members Next in Line for the Presidency?
In their essay “Is the Presidential Succession Law Constitutional?,” law professors Akhil Red Amar and Vikram Amar observe that the 25th Amendment is unconstitutional. They believe that “Officers” refers to individuals appointed by the President and who are not elected.
It seems clear that if something were to occur to both the President and Vice-President that the Speaker, followed by the President pro tempore, would become the next U.S. president. But is the situation really this simple? Perhaps not.
In the troublesome era we are currently in with deep political divides, could the “losing” party file a lawsuit that neither the Speaker of the House or the President pro tempore are legitimate successors due to the “officer” concern? Likewise, could a party claim that the Presidential Succession Act of 1791 was the only legal act, since it was decided shortly after the signing of the Constitution and that the order of successors was not due to the personal likes of the President (as was the case in 1947) but rather out of Congressional compromise?
The Role of the President Pro Tempore
The President pro tempore, per our Constitution, presides over the Senate in the Vice President’s absence. Since 1947, that person has served as third in line to the presidency.
Since 1890, the President pro tempore has customarily been the majority party Senator who has the longest continuous service. Many people may mistake the President pro tempore as the Senate’s majority leader, but this is not necessarily the case.
Currently, Chuck Grassley serves as President pro tempore. Mitch McConnell is the Senate majority leader.
Could There Be Dual US Presidents?
Due to the legal uncertainty of the succession, what if either the Speaker or the President pro tempore claimed to be the next president and so did a member of the President’s cabinet? Going even further, imagine if the Speaker or the President pro tempore were sworn in by a member of the court. There is not a legal requirement for the Chief Justice to swear in the President during the inauguration ceremonies, although he normally does so.
And what would happen if a cabinet member was also sworn in at the same time, again by a judicial member who is not on the Supreme Court? According to author Brian Kalt, in his book “Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies,” “the Speaker would have the statute and well-settled expectations on her side; the secretary of state would have the stronger constitutional arguments and all the policy arguments … a resistible force versus a moveable object.”
There are many questions that would be raised if two people both sought the presidency:
- If there were a conflict between two individuals vying for the U.S. presidency, who would rule? Would the Supreme Court need to decide in a court case?
- How long would this court case take?
- What if the Senate did not confirm Amy Coney Barrett or any other nominated justice, and the court was split 4 to 4?
- What if the Supreme Court decision was 5 to 4? Would this decision be enough to make our citizens comfortable with it?
- Would there be a Constitutional crisis?
- How would this impact the security of the nation, both internally and externally?
- How would other nations react?
The Role of the US Supreme Court
Ordinarily, the Supreme Court does not have a role in determining the future president. But if either of the above scenarios was to occur, could President Donald Trump’s selection of two or three sitting Supreme Court justices make a difference in who becomes the next president?
Judges are supposed to be impartial and neutral. However, it is questionable that the court system could remain silent during in a Constitutional crisis with no sitting President, a Congress unable to agree on the next successor, potentially dual claims for the nation’s highest office and the threat of violent protestors in the streets. In order to avoid a Constitutional crisis occurring, our legislative members must overcome their perceived dislike for each other along party lines and focus their efforts towards what is best for us — the people of our great nation.
About the Author
Dr. Brian Blodgett is an alumnus of American Military University who graduated in 2000 with a master’s of arts in military studies and a concentration in land warfare. He retired from the U.S. Army in 2006 as a Chief Warrant Officer after serving over 20 years, first as an infantryman and then as an intelligence analyst. He is a 2003 graduate of the Joint Military Intelligence College where he earned a master’s of science in strategic intelligence with a concentration in South Asia. He graduated from Northcentral University in 2008, earning a doctorate in philosophy in business administration with a specialization in homeland security.
Dr. Blodgett has been a part-time faculty member, a full-time faculty member and a program director. He is currently a full-time faculty member in the School of Security and Global Studies and teaches homeland security and security management courses.
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