The Vice-Presidency and the Problems of Presidential Succession and Inability
The V ice-Presidenc y and the Problems of Presidential Succession and Inability
John D. Feerick 0 1
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1 Fordham University School of Law
Recommended Citation John D. Feerick, Th e Vice-Presidency and the Problems of Presidential Succession and Inability , 32 Fordham L. Rev. 457 (1964). Available at: http://ir.lawnet.fordham.edu/flr/vol32/iss3/2
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 Offi e, tile 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 Offlcer shall act
accordingly, until the Disability be removed, or a Presidentshall be elected.'
THE orderly transfer of power to President Lyndon B. Johnson upon
the tragic death of our late President, John F. Kennedy, clearly
revealed one remarkable strength of our Government-its continuity.
Succession by the Vice-President was swift and unquestioned. No gap
occurred in our executive leadership since there was no doubt about who
was to take over at the helm of the Government-the Vice-President.
As was noted at the time: "[A] few lines in the Constitution . . .
have made the Government of the United States a continuum that
calamities like this ... cannot interrupt or break."
Despite (or perhaps because of) the smooth manner in which
executive power changed hands on November 22, 1963, the entire mechanism
of succession has again come under public and congressional scrutiny.
Newspaper columnists in particular, public figures, and others have
voiced strong criticism of various inadequacies in the present system3
Member of the New York Bar; member, American Bar Association Conference on
Presidential Inability and Succession.
1. U.S. Const. art. I, § 1, di. 6.
2. Krock, The Continuum: Kennedy's Death Points Up Orderly Progression in U.S.
Government, N.Y. Times, Nov. 24, 1963, § 4 (The News of the Week in Review), p. 9E,
3. For a sampling of the criticisms of the present succession law, see Childs, Succession,
N.Y. Post, Nov. 29, 1963, p. 50, cols. 1-2 ("This is the time to adopt a carefully
thoughtout plan of succession."); Eisenhower, When the Highest Office Changes Hands, Saturday
Evening Post, Dec. 14, 1963, p. 15, col 4; Lawrence, Presidential System Flaws Seen in
Fixing of Tenure, N.Y. Herald Tribune, Dec. 11, 1963, p. 27, cob. 1-2 ("The weakness is
the obligation written in the Constitution requiring that Presidential and Congressional
elections be held at fixed times."); Lippmann, The Presidential Succession, Wash. Post,
Dec. 12, 1963, p. A21, cos. 1-3 ("There are several very grave objections to the present
law."); Morris, The Muddled Problem of the Succession, N.Y. Times, Dec. 15, 1963, § 6
(Magazine), p. 11; Nixon, We Need a Vice President Now, Saturday Evening Post,
Jan. 18, 1964, p. 6; Reston, The Problem of Succession to the Presidency, N.Y. Times,
Dec. 6, 1963, p. 34, col. 5 ("Congress has been remarkably casual about this succession
problem from the start of the Republic."); Wilmerding, Jr., Wash. Post, Dec. 8, 1963,
p. 1, cols. 2-3, p. A13, cos. 1-4
("To cast doubt upon the constitutionality of the act
of 1947 is to confuse a problem already difficult enough. But that the doubt exists can
scarcely be denied.")
; Letter From Joseph L. Allen to N.Y. Times, Dec. 4, 1963, p. 46,
The Subcommittee on Constitutional Amendments of the Senate Judiciary
Committee, under the chairmanship of Senator Birch Bayh of Indiana,
has just conducted extensive hearings at which members of the Congress
and the public have presented their views and proposals as to how the
inadequacies can be corrected.4 There was general agreement that the
time for Congress to eliminate these inadequacies is now, while there is
widespread concern about them.
In the main, attention has been focused on three subjects-the
VicePresidency, the present succession law, and the inability provision of the
Constitution. The purpose of this article is to examine these interrelated
subjects. First, a brief history of the Vice-Presidency is presented.
Then, the various succession laws are examined and the present
proposals to change the 1947 law are considered. Finally, the recent
proposals for solving the problem of presidential inability are
discussed. The author's article in the October issue of this volume contains
the details of this problem and it will be referred to where appropriate. '
The succession of Lyndon B. Johnson to the Presidency has left a
vacancy in the office of Vice-President for the sixteenth time in our
history. The Nation is now in its thirty-seventh year without a
VicePresident. Eight Vice-Presidents have succeeded to the Presidency,'
seven have died in office,' and one has resigned from office.' A study
of the Vice-Presidency is essential for a thorough understanding of the
problems of succession and .inability?
A. Creation and Early History
Surprisingly, the Vice-Presidency seems to have been an afterthought
of the framers of the Constitution. It was created in the closing days
of the Constitutional Convention of 1787 when there was little time for
the careful deliberation which had been given to other parts of the
Constitution. Provision for a successor to the President, on the other
hand, had existed from the early days of the Convention.' 0 There is
some doubt as to whether Pinckney's Plan of May 29 contained a
presidential succession provision." However, Hamilton's Plan of June 18
did include such a provision 2 as did the August 6 report of the
Committee on Detail. 3 The proposed successor at that point was the
President of the Senate who would be elected by the Senate from among its
members. On August 27, Gouverneur Morris of Pennsylvania proposed
that the Chief Justice should be the immediate successor to the
President. 4 James Madison disagreed, suggesting that during a vacancy the
executive powers should be administered by a council to the President.'
On September 4 a Committee of Eleven, which had been appointed on
August 31 to consider those parts of the Constitution which had been
postponed or not acted upon, delivered a partial report to the Convention.
It recommended an office of Vice-President as well as election of
President and Vice-President by an electoral college."
On September 7, the delegates addressed themselves to the office of
Vice-President. Almost all of the discussion centered on the
Vice-President's position as President of the Senate. Elbridge Gerry thought that
the office, as proposed (i.e., combining the functions of succeeding to
the Presidency and presiding over the Senate), violated the principle of
separation of powers by permitting executive interference in the
Legislature." Gouverneur Morris dismissed this notion, arguing that the
Vice-President could be expected to be independent of the President
("the vice-President then will be the first heir apparent that ever loved
his father") and that it mattered little or not at all whether the successor
was a Vice-President who was also President of the Senate or a
Senateelected President of the Senate.' Roger Sherman of Connecticut was
concerned that, without a Vice-President, some Member of the Senate
would be deprived of his vote (most of the time) by being made
President of the Senate. He also felt that the Vice-President "would be
without employment" if he were not President of the Senate. 9 Hugh
Williamson of Delaware stated that "such an officer as Vice-President
was not wanted."20 At the conclusion of the discussion the
Vice-Presidency was approved by a vote of eight to two.21 Surprisingly, the
delegates gave little attention "to the chief part which the Vice-President
has, in fact, played in history, that is, to his succession in case of the
death of the President.122 Similarly, scant attention was paid to the
office in the state ratifying conventions.2
On September 8, a committee was formed to "revise the style of and
arrange the articles agreed to by the House." On September 12, this
committee returned a draft to the Convention which, except for a few
changes, was to become the Constitution of the United States. The
VicePresident was given only two duties by the Constitution: (I) to preside
over the Senate, in which capacity he could vote when the Senate was
"equally divided" and open the certificates listing the votes of the
presidential electors, and (2) to discharge the powers and duties of
17. Id. at 536-37.
18. Id. at 537.
21. Id. at 538.
22. Warren, The Mking of the Constitution 635 (1937 ed.).
23. For an excellent summary of post-Convention discussion on the Vice-Presidency,
see Field, supra note 9, at 369-73.
24. 2 Farrand at 547, 553. As to how this Committee rendered the succession provision
ambiguous, see Feerick, supra note 5, at 85-87.
25. U.S. Const. art. I, § 3; id., art. II, § 1. For a good analysis of the casting votes
of Vice-Presidents, see Learned, Casting Votes of the Vice-Presidents, 1789-1915, 20 Am.
ist. Rev. 571 (1915), where the author says that such votes were cast 179 times. See
also Hatch & Shoup, op. cit. supra note 9, at 101, where it is said that for the period
1789-1929, twenty-four of thirty Vice-Presidents cast tie breaking votes 191 times.
For some congressional discussion of this power, see 6 Cong. Rec. 737 (1877) (debate
about whether it can be exercised where question involves membership in the Senate),
the President in case of his death, resignation, removal or inability."
His was a unique office, neither legislative nor executive but combining
functions of both. What his role would be was clouded in such mystery
that Alexander Hamilton was impelled to declare in The Federalistthat:
The appointment of an extraordinary person, as Vice-President, has been objected
to as superfluous, if not mischievous. It has been alledged, that it would have been
preferable to have authorised the Senate to elect out of their own body an officer
answering that description. But two considerations seem to justify the ideas of the
convention in this respect. One is, that to secure at all times the possibility of a
definitive resolution of the body, it is necessary that the President should have only
a casting vote. And to take the senator of any State from his seat as senator, to place
him in that of President of the Senate, would be to exchange, in regard to the State
from which he came, a constant for a contingent vote. The other consideration is,
that as the Vice-President may occasionally become a substitute for the President,
in the supreme executive magistracy, all the reasons which recommend the mode of
election prescribed for the one2,7 apply with great if not with equal force to the
manner of appointing the other.
The Vice-President, like the President, was to hold office for four
years.28 He was to be elected at the same time and in the same manner
as the President2 9 and he was to be subject to impeachment but, while
the Constitution provided that the Chief Justice would preside at a
trial of the President, no presiding officer was mentioned for a trial
of the Vice-President. ° In contrast to its provision of an oath of office
for the President, the Constitution prescribed no oath for the
Nor did it mention any qualifications for the Vice-Presidency.
and 47 Cong. Rec. 1950 (1911) (objections to the exercise of power in a matter involving
a constitutional amendment).
The opening of the certificates of the presidential electors has been nothing more than a
ministerial function of the Vice-President. He does not decide disputed questions about
the certificates. Prior to the twelfth amendment, however, Vice-Presidents did exercise such
a power. Williams, The American Vice-Presidency: New Look 5 (1954).
26. For the development of the succession clause at the Convention, see Fecrick, supra
note 5, at 81-87; Silva, Presidential Succession 1-13 (1951), the outstanding treatise on
27. The Federalist No. 68, at 443 (Wright ed. 1961) (Hamilton). See President Truman's
interesting observations on the Vice-Presidency, 1 Truman, Memoirs 53-57 (1955).
28. U.S. Const. art. II, § 1, cl. 1.
30. Presumably, the President pro tempore of the Senate would preside at his trial.
31. By An Act of June 1, 1789, 1 Stat. 23, Congress established such an oath. For the
oath taken by the Vice-President, see 15 Stat. 85 (1868), 5 U.S.C. § 16 (1958). For an
interesting history of the Vice-President's oath, see Learned, The Vice President's Oath
of Office, 104 Nation 248 (1917). The author says that prior to the Civil War It was
customary for the President pro tempore to administer the oath to the Vice-President.
Since then, it has been customary for the outgoing Vice-President to administer It, except,
of course, where the Vice-President has either died or succeeded to the Presidency or the
incumbent Vice-President has been given a second term. Learned points out seven
This was not due to oversight or lack of deliberation. The Vice-President
would have the same qualifications as the President (i.e., a natural-born
citizen, at least thirty-five years of age, and fourteen years a resident
within the United States) 3" since, under the original method of election,
the presidential electors would vote for two persons for President and
the person obtaining the second highest number of votes would become
Vice-President.3 This method was designed to place in the office of
Vice-President a person equal in stature to the President.
Its purpose was early frustrated, however, because the electors began
to distinguish the two votes in their own minds, casting the first for
the candidate they considered suitable for the Presidency and the second
for their vice-presidential choice. The inherent defect in the original
method of election revealed itself in 1800 when most of the Republican
electors voted for Aaron Burr and Thomas Jefferson, intending Burr
for Vice-President and Jefferson for President. Burr received as many
votes as Jefferson so that the election of President fell into the House
of Representatives.3 As a result, the mode of election was modified in
1804 by the adoption of the twelfth amendment, which provided that
the electors would cast two distinct votes--one designated for President
and one designated for Vice-President. The candidate who received a
majority of the electoral votes for the respective office would be elected.
If no candidate obtained a majority, the House of Representatives would
choose a President from the candidates, not exceeding three, who had
the highest number of votes for President, and the Senate would choose
a Vice-President from the two candidates who had the highest number
of votes for Vice-President. If it happened that the election of a
President fell into the House of Representatives and the House failed
to elect a President by the date set for his term to begin, the
Vice-Presitions to the above rules: In 1805, Chief Justice Marshall administered the oath to
VicePresident Clinton and President Jefferson and, in 1833, to Vice-President Van Buren and
President Jackson. In 1825, Andrew Jackson (then a Senator and the oldest present)
administered the oath to Vice-President Calhoun. In 1809, Clinton took the oath at a
place away from Washington, D. C., as did Gerry in 1813 (administered by a federal
district court judge), Tompkins in 1821, and King in 1853 (administered in Cuba by a
consul pursuant to a special act). See note 7 supra.
32. U.S. Cost. art. II, § 1, c. 5.
33. See U.S. Coast. art. II, § 1. The President was required to obtain a majority of
the electoral votes. If he failed to do so, then the House, voting by States, would elect
the President from the five highest. (If two candidates had a majority of the electoral
votes and were tied, the House would choose between them.) To be elected in the House,
a person had to obtain the votes of a majority of the States. The Vice-President would
be that person receiving the next highest number of votes of the electors. If there were
two or more candidates tied for next highest, then the Senate would choose the Vice-President
by ballot. See note 35 infra.
34. For a good account of this election, see Waugh,oop. cit. supra note 9, at 41-48.
dent-elect would act as President.3 5 In order to insure that the
VicePresident would have the same qualifications as the President, the words
"no person constitutionally ineligible to the office of President shall be
eligible to that of Vice-President.. ." were inserted in the amendment.0"
Shortly after the passage of the Constitution, a number of matters
concerning the Vice-Presidency came under discussion and the low
opinion of the office became evident. In the debates of the First Congress
over an annual salary for the Vice-President, some members of the
House of Representatives felt that his work would be so sporadic that
he should be paid only on a per diem basis. 7 Others, including James
Madison, believed that not to give him an annual salary would be
offensive to the dignity of the second officer of the Government. Said
If he is to be considered as the apparent successor of the President, to qualify
himself the better for that office, he must withdraw from his other avocations, and direct
his attention to the obtaining [of] a perfect knowledge of his intended business ....
[I]f we mean to carry the constitution into full effect, we ought to make provision
for his support, adequate to the merits and nature of the office.38
An annual salary of $5,000 was finally decided upon.
The paradox which became evident in these debates was the
tremendous gap between what the Vice-President was and what he could
be. As Vice-President John Adams declared:
I am possessed of two separate powers, the one in esse and the other in posse. I am
vice-president. In this I am nothing, but I may be everything. But I am president
also of the Senate.3 9
Although two of the first three Vice-Presidents became Presidents in
their own right (Adams and Jefferson), the notion that the Vice-Presidency
was a sure springboard to the Presidency ceased with the adoption of
the twelfth amendment and the rise of political parties. As a result of the
twelfth amendment political considerations rather than ability became
all-important in the selection of a Vice-President. Senator White was
remarkably perceptive when he said, during the debates on the
[C]haracter, talents, virtue, and merit, will not be sought after, in the candidate.
The question will not be asked, is he capable? is he honest? But can he by his
innatmrige,uebsy, hbiesstcopnronmexoiotenst,hbeyelheicstiwoneaoltfh,a bPyrehsiisdeloncta?l40situation, by his influence, or his
The adoption of the Twelfth Amendment in 1804 marks a great turning point in the
history of the Vice Presidency, and the turn was definitely for the worse ....
Even without the Twelfth Amendment political party practice was pointing the
Vice Presidency toward a decline. But by specifying that each elector would cast
one ballot for President and a separate ballot for Vice President the amendment
milade the descent of the Vice Presidency clearer and more understandable 42
Thus, Vice-Presidents in the nineteenth century rarely were given any
executive responsibilities, although good relationships existed between
Monroe and Gerry, Jackson and Van Buren, Polk and Dallas, Lincoln
and Hamlin, and McKinley and Hobart4. 3 They did not take part in
meetings of the President's Cabinet4 4 and their role as President of the
Senate became little more than a pastime4 0 Few nineteenth century
Vice-Presidents left any legacy for future occupants. The decline in
the office was plainly revealed in 1840, when the Democratic National
Convention failed to select any Vice-Presidential candidate at all to run
40. 13 Annals of Cong. 143 (1803). Some delegates thought that rather than have the
twelfth amendment, the Vice-Presidency should be abolished. Id. at 673-74. For an
excellent analysis of the background and the effect of this amendment, see Wilmerding, Jr,
The Vice Presidency, 68 Pol. Sd. Q. 17 (1953). The author concludes that the reasons
for creating the office were frustrated by the amendment and that the office should, therefore,
be abolished. Id. at 41.
41. Its first occupant was to note the following in a letter to his wife: 'rfy country has
in its wisdom contrived for me the most insignificant office that ever the invention of
man contrived or his imagination conceived." 1 Adams, The Works of John Adams 460
(1856 ed.). And its thirty-fourth was to say: "[W]hen I became Vice-President, I was
familiar with incongruities and inadequacies of that office." 1 Truman, op. cit. supra note 27,
42. Waugh, op. cit. supra note 9, at 50.
43. See Rosenberg, The Vice Presidency of the United States 175-90 (1930) (unpublished
thesis in University of California Library).
44. See note 54 infra.
45. Hatch &Shoup, op. cit. supra note 9, at 419.
FORDtIAM LAW REVIEW
with Van Buren. 41 In general, it can be said that the names of the
nineteenth century Vice-Presidents-e.g., Richard M. Johnson, George
M. Dallas, William R. King, Hannibal Hamlin, Schuyler Colfax, Henry
Wilson, William A. Wheeler, Thomas A. Hendricks, and Levi P. Morton"
-are wholly unfamiliar to most Americans.
A major nineteenth century development in the Vice-Presidency
occurred upon the death of William Henry Harrison on April 4, 1841.
In upwards of half a century, this is the first instance of a Vice President's being
called to act as President of the United States, and brings to the test that provision
of the Constitution which places in the Executive chair a man never thought of
for that office by anybody.48
Considerable discussion was generated about the status of the then
VicePresident, John Tyler. Did he become President? Or, did he remain
Vice-President with the added responsibility of discharging the powers
and duties of the Presidency? Tyler acted decisively, declaring that by
God, election and the Constitution he had become President, in every
sense.49 Although he seems to have been of the opinion that he
automatically succeeded to the Presidency upon the death of Harrison, he
took the presidential oath in order to eliminate all doubt on the
question.50 But doubt remained in the minds of some. Said John Quincy
Adams in his diary:
But it [Tyler's assumption of the title and office of the Presidency] is a construction
in direct violation both of the grammar and context of the Constitution, which
confers upon the Vice-President, on the decease of the President, not the office, but
the powers and duties of the said office. 51
Despite the objections, Tyler's assumption of the office established the
precedent that when the President dies, the Vice-President becomes
President for the remainder of the term. 2 The taking of the presidential
oath also became a constitutional custom 3
C. Twentieth Century Growth
Although Vice-Presidents Tyler, Fillmore, Johnson and Roosevelt had
succeeded to the Presidency, the Vice-Presidency was not to undergo
a "renaissance" until the twentieth century. In this century, the role
of the Vice-President has steadily grown. He has become a regular
member of the President's Cabinet,5 4 a member of the National Security
Council, 5 the head of some executive agencies,56 a representative of
52. Despite this precedent, which has been given some recognition by the twentieth and
twenty-second amendments, the death of an incumbent President usually evokes some
discussion over the status of the then Vice-President. Hence the statement that "we probably
have not had so many presidents as we have been accustomed to thinking." Field, supra
note 9, at 385. See, e.g., Moley, Is Truman Really President?, Newsweek, July 14, 1947,
p. 92. Shortly after the succession of President Lyndon B. Johnson, a southwestern attorney
brought a lawsuit against him, seeking a determination that he is not President but rather
Vice-President, acting as President.
53. See note 6 supra.
54. The practice of the Vice-President's participating in Cabinet meetings dates back
to President George Washington. His Vice-President, John Adams, is reported to have
taken part in a meeting on April 11, 1791. 1 Writings of Thomas Jefferson 278 (Bergh
ed. 1907). See also Learned, The President's Cabinet 121-25 (1912). During the
administration of John Adams, his Vice-President, Thomas Jefferson, did not participate in
Cabinet meetings. "I consider my office as constitutionally confined to legislative functions,
and that I could not take any part whatever in executive consultations, even were it
proposed." 7 Writings of Jefferson 120 (Ford ed. 1896). Thus, it became customary for
the Vice-President not to participate. Though there may have been times when
VicePresidents did attend meetings of the Cabinet (see Paullin, The Vice-President and the
Cabinet, 29 Am. Hist. Rev. 498 & nn.13 & 14 (1924)), no change in the custom was to
occur until December 10, 1918, when Vice-President Thomas R. Marshall, at President
Wilson's request, presided over a meeting of the Cabinet during the absence of Wilson and
his Secretary of State from the country. Marshall presided over several meetings and
when Wilson returned to the country, Marshall was invited to attend a meeting. Id. at
498-99. In the following administration, the then Vice-President, Calvin Coolidge, became a
regular member of the Cabinet until President Harding's death. Id. at 500. Charles G.
Dawes, President Coolidge's Vice-President, refused to attend Cabinet meetings, believing
it politically and constitutionally "unwise." Hatch & Shoup, op. cit. supra note 9, at 45.
Subsequent Vice-Presidents (Garner, Wallace, Truman, Barkley, Nixon and Johnson)
have been regular members of the Cabinet. The most significant development happened
during the administration of President Eisenhower, i.e., Vice-President Richard M. Nixon
presided over the meetings of the Cabinet and National Security Council during the
President's absence. See Donovan, Eisenhower: The Inside Story 378-85 (1956); Eisenhower,
Mandate For Change 538, 540-41 (1963).
55. 61 Stat. 496 (1947), 50 U.S.C. 402 (1958). This development guards against the
case of a Vice-President's being called to the Presidency in an emergency (e.g., Truman and
the A-bomb) and not knowing vital facts about the Nation's security.
56. The precedent was established in 1941 by President Roosevelt who made his
the President on good will and diplomatic tours around the world, 7 and
a sharer of some of the ceremonial and political functions of the
President." In short, he has become an informed, consulted and working
member of the Government, adequately trained to assume the
responsibilities of the Presidency, should the occasion require it.
D. Proposed Changes
The Vice-Presidency is still not above improvement. The practice of
selecting vice-presidential candidates on the basis of political
considerations rather than their qualifications for the Presidency persists."
Proposals to change this practice have been made from time to time but
without any discernible effect.60
Vice-President, Henry A. Wallace, chairman of the Economic Defense Board. Lord, The
Wallaces of Iowa 484-85 (1947). Vice-President Nixon was made chairman of the President's
Committee on Government Contracts. Williams, The Rise of the Vice-Presidency 248
57. Again, the classic precedents were established by President Roosevelt and
VicePresident Henry A. Wallace. Lord, op. cit. supra note 56, at 501-03. This role was carried
forward by Vice-President Nixon and even further by President Johnson. For a good
account of part of Johnson's tenure as Vice-President, see Fuller, Year of Trial 18-33 (1962).
58. See Nixon, Six Crises (1962). James Reston gives an interesting picture of
President Johnson as Vice-President: "When he was Vice President, he had to discipline his
energies. He had a limited catalogue of duties, limited for a man of his expansive nature.
He stayed within the bounds of his assignment, seldom talked up in Cabinet meetings or
the National Security Council unless requested to do so, and, in keeping with his sense of
political loyalty, never differed with President Kennedy in the presence of anybody else."
Reston, Eisenhower to Johnson: Take It Easy, N.Y. Times Jan. 12, 1964, § 4 (The News
of the Week in Review), p. 12E, col. 3.
59. How Vice-President Nixon was selected is described by Eisenhower, op. cit. supra
note 54, at 46-47. He says that he "had made in longhand a short 'eligible list' of those
I thought both qualified and available." Nixon was the first of five names and was approved
by a committee of close advisers to the President. Johnson's selection is recounted In
Fuller, op. cit. supra note 57, at 6-8 ("Kennedy picked his second choice for President
in 1960."). Recent Vice-Presidents have, indeed, been men of presidential timber but
the system does not insure that this will be so in the future.
60. Committees of Congress have given much attention to proposals for selection of
presidential and vice-presidential candidates on the basis of nationwide primaries. See, e.g.,
Hearings Before the Subcommittee on Constitutional Amendments of the Senate Committee
on the Judiciary, 87th Cong., 1st Sess. (1961) (5 parts), 88th Cong., 1st Sess. (1963).
Truman believes that nationwide primaries would be too expensive while former
VicePresident Barkley believed that the candidates' own committees would probably bear the
expense. Bendiner, The Changing Role of the Vice-President, Colliers, Feb. 17, 1956, p. 53.
It has been suggested at times that the vice-presidential candidate be selected before the
presidential candidate. This proposal would, it seems, discourage candidates of presidential
timber from seeking the nomination as they probably would hold out for the presidential
nomination. Another more serious objection is that it would permit the selection of a
candidate whose views and personality would be incompatible with those of the presidential
candidate. Former President Hoover has suggested a secret ballot instead of unit rule vote
Another area of possible reform is in the Vice-President's work load.
While an enumeration of the President's powers and duties would
literally fill reams of paper, those of the Vice-President can be briefly
catalogued. In addition to being the presiding officer of the Senate,"' the
Vice-President is a member of the National Security CouncilrG chairman
of the National Aeronautics Space Council,63 chairman of the Committee
on Equal Employment Opportunity,64 and a member of the Board of
Directors of the Smithsonian Institute (its presiding officer in the absence
of the President).65 He has the power to nominate a limited number of
persons for appointment to the various military service academies, 0 and
to administer oaths to executive officials. 7 His salary is $35,000 a year,
plus an expense allowance of $10,000.8
The ascendancy of the Vice-Presidency to its present height argues
well for the future, but there is no escaping the fact that the extent of
any Vice-President's role in our government will depend on his
relationship with the President. Proposals to make his role more specific, 0
their advantages aside, are not likely to be adopted. The recent
proposal of Senator ]Kenneth B. Keating of New York that a constitutional
amendment be enacted to provide for an executive Vice-President who
would be first in the line of succession, as well as a legislative
VicePresident, who would be second in line and President of the Senate, has
met with some support but even greater opposition. 70 Former
VicePresident Nixon summarily dismissed it, saying that by dividing "the
already limited functions of the office, we would be downgrading
the vice presidency at a time when it is imperative that we add to its
prestige and importance."' To this can be added the objection that
having two Vice-Presidents might well result in neither one being as
adequately prepared as were Vice-Presidents Nixon and Johnson to
assume the powers and duties of the Presidency in cases of emergency.
A Vice-President devoted exclusively to administrative problems leaves
much to be desired when one considers the present-day requirements
for the Presidency. As our late President stated:
[T]here is such a difference between those who advise or speak or legislate [or
administer], and between the man who must select from the various alternatives
proposed and say that this shall be the policy of the United States.72
(3) The Vice-President should be given more administrative responsibilities. Menez,
Needed: A New Concept of the Vice-Presidency, 30 Social Science 143, 149 (1955) ("The
Vice-President must become the Assistant President."); Rossiter, The Reform of the
VicePresidency, 63 Pol. Sci. Q. 383, 394 (1948) ("[Tlhe President's chief assistant in the
overall direction of the administrative branch"). See also Bush, Needed-A Business Manager,
Colliers, March 13, 1920, p. 13; U.S. News & World Rep., July 9, 1948, pp. 19-20. During
the 1956 Senate hearing on the proposal to create a position of administrative
VicePresident, Clark Clifford, assistant to both Presidents Truman and Kennedy, suggested
that the Vice-President could truly become the second officer in the Government if he
were moved to the executive branch. This, he recognized, would require a constitutional
amendment but only by becoming a "day-by-day working assistant to the President,"
he said, would he really be prepared for the Presidency. Hearings Before the Subcommittee
on Reorganization of the Senate Committee on Government Operations, 84th Cong., 2d
Sess. 57 (1956).
(4) Some have suggested the abolition of the office of Vice-President altogether. See
note 40 supra. Wilmerding suggests that if the President were to die, be removed, or resign,
the Secretary of State would act as President until the holding of a midterm election to
fill the vacancy. In cases of inability, he would act until the inability was removed.
Wilmerding, The Presidential Succession, Atlantic Monthly, May 1947, p. 91. See Hazlitt,
The Vice Presidency, Newsweek, Dec. 2, 1963, p. 86.
See generally Field, The Vice Presidency of the United States, 56 Am. L. Rev. 365, 398-400
(1922); Rossiter, The Reform of the Vice-Presidency, 63 Pol. Sci. Q. 383, 387-89 (1948).
70. S.J. Res. 143, 88th Cong., 2d Sess. (1964). A similar proposal was introduced
several years ago by Senator Monroney. For a good discussion of his proposal, see Rossiter,
supra note 69, at 391-93.
71. Nixon, We Need a Vice President Now, Saturday Evening Post, Jan. 18, 1964, p. 6.
72. Public Papers of the Presidents of the United States, 1962, at 889
Printing Office, 1963)
Prudence would seem to dictate that the twentieth century growth of
the Vice-Presidency be in no way nullified.
The aftermath of President Kennedy's death has seen renewed
discussion and much criticism of the present succession law. 3 Some of
the discussion has, unfortunately, centered on the personalities who
are now in line of succession rather than on what might be the best
kind of law. '4 The criticisms of personalities aside, it is argued that
the 1947 law is unconstitutional. 5 The Speaker of the House of
Representatives and the President pro tempore of the Senate, it is said, are
not "officers" within the meaning of the succession clause and, even if
they are, Congress has no power to authorize them to act after they
have resigned from their respective offices-which the present law
requires them to do preparatory to acting as President. The 1947 law
is said to be impractical since the Speaker and President pro tempore
are not chosen on the basis of their qualifications for the Presidency and
since it allows a political party different from that of the President and
Vice-President to take over after them. Hence the demand for change.
Former President Dwight D. Eisenhower has expressed a preference
for the old Cabinet line of succession, observing that the present law
does not fulfill "the requirements of our times. ' 70 Former
Vice-President Richard M. Nixon has said he is in favor of filling a vacancy in the
Vice-Presidency, noting that the "vice presidency.., is the only office
which provides complete on-the-job training for the duties of the
Should the 1947 law be changed? If so, how? An examination of
the constitutional background and history of the three succession laws
provides some understanding of the strengths and weaknesses of the
A. The ConstitutionalProvision and the 1792 Law
On August 27, 1787, Hugh Williamson of Delaware suggested to the
Constitutional Convention that "the Legislature ought to have power to
provide for occasional successors . *.,.,7. His suggestion was acted upon
on September 7 when the following provision was agreed to:
The 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 such officer shall act accordingly until such disability be removed, or a President
shall be elected. 79
This provision, with some changes, became embodied in article II,
section 1, clause 6 of the Constitution." Pursuant to this power,
Congress made the first attempt to set up a line of succession beyond the
Vice-President on December 20, 1790. A bill was presented to provide
that an officer, the name of which was left blank, shall act as President
when there are vacancies in the offices of President and Vice-President. 1
On January 10, 1791, motions were made to name the officer variously
as the Secretary of State, the Chief Justice, the President pro tempore
and the Speaker.82 The discussion concluded on January 13 without any
consensus having been reached and with some of the delegates remarking
that there was no need for immediate action."
In the Second Congress, on November 15, 1791, a Senate committee
reported a bill dealing with the choice of presidential electors. On
November 23, the bill was returned to the committee which was "instructed
to report a clause, making provision for the administration of
Government, in case of vacancies in the offices of President and Vice
President. '8 4 The bill was reported on November 28 and was passed by
the Senate on November 30. Little is known as to what transpired in
the Senate because its debates were not reported at the time. Section 9
of the bill named the President pro tempore and Speaker, respectively,
as the successors. The bill was referred to the House on November 30,
and it came under scrutiny by the Committee of the Whole on
December 22. 15 On that day, a motion to eliminate section 9 entirely was made
and defeated. Then a motion to remove the President pro tempore and
Speaker from the line of succession was made. It was defeated on
January 2, 1792.
In Committee, feeling was strong that neither the President pro tempore
nor the Speaker was an officer in the sense contemplated by the
Constitution."8 Representative Giles declared that "if they had been considered
as such, it is probable they would have been designated in the
Constitution; the Constitution refers to some permanent officer to be created
pursuant to the provisions therein contained. 8 7 Some felt that they were
officers. "If the Speaker is not an officer," said Representative Gerry,
"what is he?""8 Gerry, however, objected to section 9 because it
blended the executive and legislative branches of the Government.
Representative Hillhouse registered a general objection to any provision
by which the President could appoint his own successor since it would
take "away the choice from the people ...violating.. . the first principle
of a free elective Government."8 9
On January 2, 1792, the Committee of the Whole reported the bill to
the House. A motion to strike out the President pro tempore was
narrowly defeated" while one to strike out the Speaker was carried."
As a result, the bill was laid on the table. On January 6,12 it was
returned to the Committee of the Whole. The Committee considered
it on February 9, at which time the President pro tempore was removed
85. Id. at 278.
86. In the First Congress, Representative White had advanced this argument with
which Representative Sherman had disagreed. 2 id. at 1902-03 (1790).
87. 3 id. at 281 (1791). In agreement were Representatives Giles, Sturges, White and
Williamson. Said Williamson: "[Tihis extensive construction of the meaning of the
word officer, would render it proper to point out any person in the United States, whether
connected with the Government or not, as a proper person to fill the vacancy contemplated."
90. The vote was 27 nays and 24 yeas. Included among the yeas were four delegates to
the Constitutional Convention-Baldwin, Fitzsimons, Madison and Williamson. The nays
had only two-Gerry and Gilman. Id. at 303.
91. The vote was 26 to 25. In favor of it were the following delegates to the
Constitutional Convention: Baldwin, Fitzsimons, Gerry, Madison and Irillamson.
92. Id. at 315.
from the line of succession. On the next day, the Secretary of State
was added." The House concurred in the substitution and the bill was
In the Senate, the House amendment was rejected: the President
pro tempore and Speaker were again inserted and the Secretary of State
removed. The Senate's opposition to having the Secretary of State
next in line after the Vice-President is said to have been due to Alexander
Hamilton's dislike of the then Secretary of State, Thomas Jefferson 5
Since Hamilton's influence in the Senate was great, he was able to have
his own way. Thus, on February 21, the bill was returned to the House.
The House withdrew its amendmenlY and the bill became law on March
1, 1792, with the signature of President George Washington." For
the next ninety-four years, the President pro tempore and Speaker were
the only successors after the Vice-President. During that time, four
Presidents and five Vice-Presidents died in office.f 8 These vacancies
occurred in singles so that the 1792 law was never employedY9
97. 1 Stat. 239 (1792). It should be noted that section 10 of the act provided that
whenever the offices of President and Vice-President became vacant, the Secretary of State
was to notify the Governor of every state that electors were to be appointed within
thirty-four days prior to the first Wednesday of the ensuing December. If less than
two months remained before that date and if the term of the last President and
VicePresident were not to end in the following March, the election would take place in
December in the year next ensuing. If the term were to end in March, no election at all
would take place.
Shortly after the law of 1792 was passed, Madison wrote Edmund Pendeton (Governor of
Virginia) a letter in which he expressed his opposition to the act. He stated, in part, that
either the Speaker or President pro tempore "will retain their Legislative stations, and then
incompatible functions will be blended; or the incompatibility will supersede those stations,
& then those being the substratum of the adventitious functions, these must fail also. The
Constitution says Congress may declare what officers, &c., which seems to make It not an
appointment or a translation, but an annexation of one office or trust to another office."
6 Writings of James Madison 95 n.1 (Hunt ed. 1906).
98. See notes 6 and 7 supra.
99. A double vacancy almost occurred on February 28, 1844. President Tyler and
several members of his Cabinet were aboard a ship when an explosion occurred, killing the
Secretaries of State and Navy. Tyler narrowly escaped with his life.
The 1886 Law
Dissatisfaction with the Act of 1792 reached a peak in the 1880's. On
September 19, 1881, President James A. Garfield died from gunshot
wounds inflicted eighty days earlier and Vice-President Chester A. Arthur
succeeded to the Presidency. The country was again left without a
Vice-President and, shockingly, for a time without any successor at all
to Arthur. This was because Congress was out of session at the time of
Garfield's death and the new Congress was not due to convene until
December. Hence, there was no Speaker'0 0 and, since Arthur had
presided at the last session of the Senate, there was no President pro
tempore.101 On November 25, 1885, Vice-President Hendricks died,
again at a time when Congress was not in session. As in Arthur's case,
for a time there was no successor to President Cleveland."
These events generated a considerable amount of discussion in
Congress during the years 1881-1886 regarding the problems of succession
and inability."' Said Senator Jones during an early discussion:
[N]othing can be of greater importance to the American people or their
representatives in Congress than those discussions of the fundamental law which may possibly
100. Prior to the adoption of the twentieth amendment, the terms of all Members of
the House of Representatives expired on March 4 of the odd years. Thus, there would be a
vacancy in the office of Speaker until the next Congress met (usually in the following
December) and elected a Speaker. The twentieth amendment (ratified Feb. 6, 1933) provided
that terms of Senators and Representatives would begin on January 3 instead of March
4, and that the regular sessions of Congress would begin at the same time. Thus, now there
would normally be only a brief period during which a vacancy would exist in either the
office of Speaker or President pro tempore-i.e., the time between January 3 and election
of a Speaker or President pro tempore. See generally 93 Cong. Rec. 7711 (1947) (remarks
of Senator Wherry).
101. See 12 Cong. Rec. 505 (1881). The Senate practice at the time was to elect a
President pro tempore only when the Vice-President was absent. It was customary for the
VicePresident to absent himself from the Senate in its dosing sessions so that a President pro
tempore could be elected to hold office until the next session. In this case, however, the
Senate was dosely divided and Vice-President Arthur's tie-breaking vote was required. Thus,
he presided and no President pro tempore was chosen. 11 id. at 465-71 (1881). Since
March 12, 1890, the Senate has elected its President pro tempore to hold office continuously
(at the pleasure of the Senate) regardless of absences of the Vice-President. Thus, this
situation would no longer be possible. 21 id. at 2153 (1890).
102. Hendricks had presided at a special session of the Senate in March to confirm
presidential nominations so that no President pro tempore was elected. 17 id. at 1 (188s).
103. It should also be noted that another event which added to the criticism of the
law of 1792 was the impeachment of President Johnson. Since he had succeeded to the
Presidency upon the death of Lincoln, there was no Vice-President. Benjamin Wade
of Ohio was President pro tempore of the Senate and next in line to succeed to the
Presidency. When the Senate tried Johnson, Wade, who would succeed if Johnson were
convicted, sat as a judge on the court of impeachment and voted "guilty." D. M. Dewitt,
was said, was an officer of the United States, a permanent officer, one
who receives his commission from the President. Even if the President
pro tempore and Speaker were such officers, it was urged, the
Constitution would still prevent them from acting as President because of the
provision that "no Person holding any Office under the United States,
shall be a Member of either House during his Continuance in Office.""u0
The law of 1792 did not require the officer acting as President to resign"'
but, if it had, it would still have been objectionable because the function
of acting as President must be added to an existing office.'XT If the
President pro tempore or Speaker resigned, he would have no office to
which the function of acting as President could be attached. On the
other hand, it was said that if he did not resign, there would be a
violation of the principle of separation of powers" 8 as he would be the
presiding officer of his House and thus entitled to vote and debate on
measures." 9 In addition, his tenure as acting President would be subject
to the will of his respective House 20 and it could come to an abrupt end
if he lost his legislative seat at the polls.' '
Most of the critics of the 1792 law favored a Cabinet line of
succession,'2 2 believing that there would be no doubt about their status as
§ 3: "No person shal be a Senator or Representative in Congress ... or hold any office,
civil or military, under the United States . ..."
It was also argued (14 Cong. Rec. 913 (1883) (remarks of Senator Maxey)) that the
President pro tempore is not even an officer of the Senate by virtue of U.S. Const. art.
I, § 3, c. 5: "The Senate shall chuse their other Officers, and also a President pro
115. U.S. Const. art. I, § 6, c. 2.
116. The law was apparently based on the premise that the Speaker and President pro
tempore were not eligible to act as President unless they retained their offices while so acting.
117. See remarks at 14 Cong. Rec. 689 (1882) (Senator Hoar), 954 (1883) (Senator
Dawes); 17 id. at 250 (1885) (Senator Evarts), 687 (1886) (Senator Baker), 688 (1886)
(Senator Ryan). "[Tihe Presidency is annexed by law to an office. It is not a person
holding an office at the time succeeding to the Presidency, but it is an officer continuing
in that office who is to perform as an annex or incident merely to another office the great
duties of the Presidency itself." 14 id. at 689 (1882) (remarks of Senator Hoar).
118. See the remarks at 14 id. at 878 (Senator Garland), 954 (Senator Beck), 954
(Senator Dawes) (1883) ; 17 id. at 214 (Senator Maxey), 248-50 (Senator Evarts) (1885);
17 id. at 684 (Senator Dibble), 687 (Senator Baker), 688 (Senator Ryan) (1886).
119. See the remarks at 14 id. at 954 (Senator Beck), 955 (Senator Dawes) (1883);
17 id. at 684 (Senator Dibble), 688 (Senator Ryan) (1886).
120. See the remarks at 14 id. at 689 (1882) (Senator Hoar); 17 id. at 250 (1885)
(Senator Evarts) ; 17 id. at 684 (Senator Dibble), 687 (Senator Baker), 689 (Senator Ryan)
121. See the remarks at 13 id. at 123 (Senator Beck), 138 (Senator Garland) (1881); 14
id. at 883-84 (Senator Morgan), 954 (Senator Beck) (1883).
122. See the remarks at 13 id. at 137 (1881) (Senator Garland); 17 id. at 216 (Senator
Maxey), 248 (Senator Evarts) (1885); 17 id. at 684, 686 (Senator Dibble), 688 (Senator
officers,' 23 that there would be continuity of administration and policy, "4
and that the Secretary of State would be far better qualified for the
Presidency than either the President pro tempore or Speaker. 2 '
Opposition to setting up a Cabinet line of succession centered on the points
that the original law was written by the Founding Fathers, 120 and that
the President would be able to appoint his own successor, which would be
contrary to the elective principle of our democracy. 2 7
The arguments for a Cabinet line of succession and against the law
of March 1, 1792 prevailed with the adoption of the Act of January 19,
1886.128 The act removed the President pro tempore and the Speaker
from the line of succession and added the heads of the executive
departments, as follows: Secretary of State, Secretary of Treasury, Secretary
of War, Attorney General, Postmaster General, Secretary of Navy and
Secretary of Interior.
Some of the advocates of the 1886 law criticized the special election
provision of the Act of 1792 on the grounds that it was unwise' or
even unconstitutional. 30 Yet, the words "until another President shall
be elected" were nonetheless inserted in the 1886 Act, together with a
proviso that the Cabinet successor would have to call Congress into
session within twenty days after succeeding if it were not then in
session. It would thus be left to Congress to decide whether or not to call
a special election. 3 '
From 1886 to 1945, three Presidents and two Vice-Presidents died
in office.' The vacancies again occurred in singles so that the Act of
1886 was never resorted to.
C. The 1947 Law
After the death of President Franklin D. Roosevelt on April 12, 1945
and the succession of Vice-President Harry S. Truman to the
Presidency, criticism of the the 1886 Act manifested itself. In a special
message to Congress on June 19, 1945, President Truman declared:
[B]y reason of the tragic death of the late President, it now lies within my power
to nominate the person who would be my immediate successor in the event of my
own death or inability to act.
I do not believe that in a democracy this power should rest with the Chief Executive.
Insofar as possible, the office of the President should be filled by an elective officer.
There is no officer in our system of government, besides the President and Vice
President, who has been elected by all the voters of the country.
The Speaker of the House of Representatives, who is elected in his own district, is
also elected to be the presiding officer of the House by a vote of all the
Representatives of all the people of the country. As a result, I believe that 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.-1
In placing the Speaker ahead of the President pro tempore, President
Truman stated that the Members of the House are closer to the people
than those of the Senate since they are elected every two years and thus
the Speaker would be closer than the President pro tempore. He
recommended that whoever succeeds after the Vice-President should serve
only until the next congressional election or a special election to elect
a President and Vice-President.
On June 25, 1945, Representative W. Sumners of Texas introduced
a bill' 4 embodying the President's recommendations, adding the Speaker
and President pro tempore, respectively, to the top of the cabinet line
of succession. It was debated briefly in the House on June 29, in which
debate Representatives Kefauver, 35 Robsion, Sumners, Reed,
Michacting executive, should it choose to do so. Cf. Silva, The Presidential Succession Act of
1947, 47 Mich. L. Rev. 451, 472-75 (1949).
132. See notes 6 and 7 supra. It is to be noted that the Republican candidates for office
in 1940, i.e., Wendell L. Willlde and Charles McNary, both had died before the term of
Roosevelt and Wallace had ended.
133. 91 Cong. Rec. 6272 (1945).
134. H.R. 3587, 79th Cong., 1st Sess. (1945).
135. "I shall not elaborate upon the arguments which we are all familiar with; that he
is closer to the people; that he has much governmental experience; that he has been honored
by his colleagues who are the direct representatives of the people. I think we should also
bear in mind that the Speaker of the House of Representatives is an official who, if he
ener13 6 and Monroney 137 expressed support for the bill. The passage of
the first succession law and the long acquiesence therein, the Supreme
Court's decision in Lamar v. United States, 38 and parts of the
Constitution itself were referred to in support of the contention that a law
placing the Speaker and the President pro tempore in the line of
succession would be constitutional. 39 Representatives Gwynne, Hancock
and Springer argued that the Speaker and President pro tempore were
not officers under the succession clause. 40 The special election feature
of the Sumners bill was attacked by Representative Robsion.141 He
stated that it would require conforming changes in the state election
laws and even in some state constitutions. Joined by Representatives
should become Acting President, would know how to get along with the Congress. He Is
bound to have experience in government which would qualify him for thqt position." 91
Cong. Rec. 7016 (1945).
136. "[A] Speaker . . .is always a man who has on numerous occasions been selected
by the people, a man with legislative as well as executive experience, a man in a position
to cooperate with the Congress, a very essential factor in the picture of Government at all
times. . . . As between being governed by a bureaucrat or an 'heir apparent to the throne'
selected by any Executive, I much prefer as our President a man elected by the people
themselves. This is representative democracy and should be adhered to in this particular case,
unless there is constitutional prohibition, and I do not believe there is." 91 Cong. Rec. 7011
137. "I believe he was very wise in recommending that the Speaker of the House Is the
nearest possible officer to express the maximum representative choice of the people at tle
most recently held national election that it is possible to find in our Government." 91 Cong.
Rec. 7012 (1945).
138. 241 U.S. 103 (1916). In that case, the Court held that a Member of the House of
Representatives was an officer of the Government within the meaning of a penal statute
making it a crime for one to impersonate an officer of the Government. The Court was
careful to note that the issue presented was not a constitutional one. In the course of Its
opinion, the Court stated: "[W]hen the relations of members of the House of
Representatives to the Government of the United States are borne in mind and the nature and
character of their duties and responsibilities are considered, we are clearly of the opinion that
such members are embraced by the comprehensive terms of the statute." Id. at 112.
The Lamar decision has been construed by several state courts as holding that a Member
of Congress is a United States officer and not a state officer. See, e.g., State ex rel. Pickrell
v. Senner, 92 Ariz. 243, 375 P.2d 728 (1962); Harless v. Lockwood, 85 Ariz. 97, 332 P.2d
887 (1958); State ex rel. Carroll v. Becker, 329 Mo. 501, 45 S.W.2d 533 (1932); Ekwall
v. Stadelman, 146 Ore. 439, 30 P.2d 1037 (1934). For Attorney General opinions that
Members of Congress are officers of the United States, see 93 Cong. Rec. 8621-22 (1947) (Acting
Attorney General McGregor) ; 17 Ops. Att'y Gen. 419 (1882) (Attorney General Brewster).
139. Representative Kefauver argued that U.S. Const. art. I, § 2, cI. 5, which provides:
"The House of Representatives shall chuse their Speaker and other Officers . . . ," shows
that the Speaker is an officer. See generally 91 Cong. Rec. 7008-28 (1945).
140. Id. at 7015, 7017-18, 7022.
141. Id. at 7010. As reported, the bill provided for a special election to fill vacancies In
the offices of President and Vice-President if such should occur ninety days or more before
the mid-term congressional elections.
Kefauver, 1 2 Monroney 43 and Reed, 144 Robsion was successful in
eliminating the provision altogether.145 As amended, the Sumners bill passed
the House and was forwarded to the Senate, where it became
pigeonholed in committee.
The 1946 congressional elections brought a different party from that
of the President into the majority in Congress.'" President Truman,
however, still asked Congress for action on his succession
recommendations, despite the fact that their enactment would place a Republican
Speaker in the line of succession. 47 Finally, in June 1946, the Senate
gave serious thought to a bill (similar to that of Sumners) which had
been introduced several months before by Senator Wherry.148 Unlike
the Sumners bill, it contained no special election provision and it
expressly required the Speaker and President pro tempore to resign from
Congress before they could act as President. 41 In the Senate debates,
Senator Hatch argued at length that the Speaker and President pro
tempore were not officers, that if an officer resigns his office he can not
act as President, that it would violate the principle of separation of
powers for a Member of Congress to act as President, and that a
Speaker or President pro tempore is not elected on the basis of his
qualifications for the Presidency. 5 ' Some felt that the Wherry bill represented
piecemeal legislation and that it should be given further consideration
in committee.' 5 1 An amendment which would place the President pro
tempore ahead of the Speaker was proposed by Senator Russell." 2
It was narrowly defeated, largely because of Senator Vandenberg, the
then President pro tempore, who argued that the Speaker was "the
officer reflecting the largest measure of popular and representative
expression at the instant moment of his succession.' 5 8 A proposed
amendment by Senator McMahon regarding a provision for a special
election was defeated, 154 as was an amendment by Senator Wiley to add
the highest ranking military or naval officers to the line of succession
after the Cabinet heads. 55 The bill was finally put to a vote and it
passed by a vote of 50 to 35.115 It passed the House on July 10 by a
vote of 365 to 11117 and became law on July 18, with President
The 1947 law provides that "if, by reason of death, resignation,
removal from office, inability, or failure to qualify, there is neither a
President nor Vice President to discharge the powers and duties of the
office of President then the Speaker . . . shall, upon his resignation as
Speaker and as Representative in Congress, act as President."' 8 If
there is no Speaker at the time, then the President pro tempore shall
act as President, upon his resignation as President pro tempore and
as Senator.5' 0 If either the Speaker or President pro tempore acts, he
150. See 93 Cong. Rec. 7767-70 (1947) for an excellent presentation of these arguments
by the Senator.
151. Id. at 7776-77. That the Speaker and President pro tempore would have to resign
their offices and membership in Congress before they could act in a case of inability, even If
'it were to be for a day, was objected to. Id. at 7774.
152. Id. at 7780.
153. Id. at 7781. The vote was 55 to 31.
154. Id. at 7783-84. McMahon's proposal provided for the election, by the last electoral
college, of a new President and Vice-President, where vacancies in these offices occurred
120 days or more before the end of the term. Senator Wherry objected to the amendment
on the grounds that Congress had no special election authority, that the Constitution
provided only for four-year terms, and that such a power would interfere with the right of
the states to say how their electors are to be chosen.
155. Id. at 7785.
156. Id. at 7786. Only Democrats opposed it while 47 Republicans and 3 Democrats
157. Id. at 8634-35. Ten Democrats and one Republican opposed the bill.
158. 62 Stat. 677 (1948), 3 U.S.C. § 19(a)(1) (1958).
159. 62 Stat. 677 (1948), 3 U.S.C. § 19(b) (1958). The act is not entirely clear on
whether a new Speaker, elected after a Speaker has resigned to act as President, is next in
line. The legislative history of the act argues for the new Speaker. See 93 Cong. Rec. 8626
does so until the end of the presidential term except in cases of failure
to qualify or inability, in which cases he acts until a President or
VicePresident qualifies or recovers from an inability. (If the President pro
tempore acts, he cannot be replaced by a new Speaker.)
If there should be no Speaker or President pro tempore at the time
of an emergency, then the line of succession runs to the highest on the
following list who is not under a disability to discharge the powers and
duties of the President: Secretary of State, Secretary of the Treasury,
Secretary of Defense, Attorney General, Postmaster Generals Secretary
of the Interior, Secretary of Agriculture, Secretary of Commerce,
Secretary of Labor. 6 A Cabinet officer automatically resigns his
departmental position upon taking the presidential oath of office. He acts as
President for the rest of the term or until a President, Vice-President,
Speaker or President pro tempore is available.'' The 1947 law makes
it clear that no one may act as President who does not have the
constitutional requirements for the Presidency.6 2
D. Present Proposals
The 1947 Act, like the Acts of 1792 and 1886, has never been
applied.16 3 Since President Kennedy's death-the only death in office of
(remarks of Representative Robsion), 8622 (remarks of Representative Mlichener), 7696
(remarks of Senator Wherry)(1947); 91 id. at 7009 (remarks of Representative Allen)
(1945). See also 62 Stat. 677 (1948), 3 U.S.C. § 19(a)(2) (1958), providing that: "The
same rule shall apply in the case of the death, resignation, removal from office, or inability
of an individual acting as President under this subsection." Furthermore, the act is not
explicit that the Speaker and President pro tempore would have to take the presidential
oath, though such was intended. Their resigning from the Congress and the taking of the
oath would probably be simultaneous so that, in a sense, at the time that they act as
President, they would still be "officers."
160. Subsection (e) of the act provides that only such officers appointed by and with the
advice and consent of the Senate prior to the happening of the particular contingency and
not under impeachmext at the time by the House of Representatives are eligible. 62 Stat.
677 (1948), 3 U.S.C. § 19(e) (1958). It will be noted that the Secretary of Health,
Education and Welfare has never been added to the line of succession.
161. Thus, a Secretary of Treasury who acts can not be superseded by a Secretary of
162. See text accompanying notes 34-36 supra. Subsection (f) provides that an individual
who acts as President is paid at the rate then applicable to the President. 62 Stat. 677
(1948), 3 U.S.C. § 19(f) (1958).
163. Is it unconstitutional? Some outstanding authorities think it is. See Silva, The
Presidential Succession Act of 1947, 47 Mich. L. Rev. 451 (1949). Professor Silva states
that the interpretation that "the Constitution does not contemplate the presiding legislative
officers as officers of the United States," is "supported by all the commentators." Id. at
463-64. She says that the 1947 law provides for succession by the Speaker and President
pro tempore on the basis of their status as presiding officers and not as Members of
(The Constitution does not require that they be Members of Congress, though
a President since the enactment of the 1947 Act-the lines for and
against the law have been clearly drawn. Former President Eisenhower
stands first in the group which opposes the law:
[I]f you have a line of succession which, right after the Vice-President, brings in
two of the legislative group, you can have a very, very bad situation arise . . . in
a period of crisis. For six years of my administration, of course, I had a Congress
that was controlled by the Democrats, so right behind Mr. Nixon in the line of
succession stood, under the present law, Mr. Rayburn, the Speaker of the House ....
[M]y immediate predecessor . . . had . . . the same experience I did in reverse.
He had Mr. Martin .... [W]hen there was no Vice-President, you would have had
different parties taking over suddenly . . . the Executive department .... You can't
change it over night and get it working effectively. I believe that if the electorate
says that such-and-such a party should have the White House for four years, it
ought to have the White House for four years.' 04
In contrast, President Truman favors the present law, for the following
The Speaker of the House has usually been a member of the House for a good, long
time before he's ever elected Speaker, he comes more nearly being elected by the
country at large than any other public servant in the federal government and of
they have always been and, without a doubt, will always be.)
For other articles in point,
see Kallenbach, The New Presidential Succession Act, 41 Am. Pol. Sci. Rev. 931, 939-41
(1947); Wilmerding, Jr., Wash. Post, Dec. 8, 1963, p. 1, cols. 2-3. See also Rankin,
Presidential Succession in the United States, 8 J. of Politics 44, 51-55 (1946).
Space limitations will not permit a detailed examination of the question. Suffice it to say
that it seems unlikely that the Supreme Court would ever declare the law unconstitutional.
The Court would, most likely, be faced with the question at the time one of the presiding
officers had taken over. It is suggested that under such circumstances the Court would avoid
the question by saying it involved a political question-or if it did decide it, would hold
that the Speaker and President pro tempore are United States officers, based on the long
acquiescence in the 1792 law and the Court's decision in Lamar v. United States, 241 U.S.
103 (1916). See notes 138 supra & 166 infra.
It is to be noted that no constitutional problems are created when the Speaker or President
pro tempore acts in a case where neither a President-elect nor a Vice-President-elect has
qualified. The twentieth amendment provides that Congress may declare what "person"
shall act in such a case.
164. CBS Reports, Transcript of "The Crisis of Presidential Succession," Jan. 8, 1964,
pp. 35-36. Eisenhower further stated that: "If the Presidency went to a member of the
Cabinet, then if that man had more than one year to serve his Presidency, I think they
[sicm]ight be called a special election and . . .let the people decide this thing." Id. at 38.
See Lippmann, The Presidential Succession, N.Y. Herald Tribune, Dec. 12, 1963, p. 24, cols.
4-6 (Cabinet, with a special election proviso); Wilmerding, Jr., Wash. Post, Dec. 8, 1963,
p. 1, cols. 2-3 (Cabinet, plus midterm election for President); Wash. Post, Jan. 10, 1964,
p. A12, cols. 2-4.
Interestingly, CBS Reports interviewed 59 Senators, of whom most said "something can
and must be done about the line of succession. Only one or two think nothing need be done
about [it]. . . ." CBS Reports, supra, at 47. See N.Y. Times, Feb. 23, 1964, § 4 (The News
of the Week in Review), p. 8E, cols. 1-2 (advocates re-establishing the Cabinet line of
course, that's the reason I placed him next to the Vice-President in the
succession ... .165
Whether the Speaker and President pro tempore should be removed
from the line of succession in favor of immediate succession after the
Vice-President by the heads of the executive departments (in order to
insure continuity of policy and administration) and whether the present
law is more democratic than the law of 1886 are issues more of the
nature of policy than not."" History shows that reasonable men have
165. CBS Reports, supra note 164, at 36. Truman's first preference, however, which
he expressed several years ago, is to have the last electoral college meet to elect a new
Vice-President whenever a vacancy occurs in that office. Id. at 40-41. Senator Kenneth
B. Keating of New York has stated that: "I don't like the succession to the regular members
of the Cabinet because .. . .One, they are not elected officials. Second, they are very apt
to be specialists in their field." Id. at 37. Speaker John McCormack also supports the present
("I supported the 1947 Act recommended by former President Harry S. Truman and
I still support it.")
and notes that the Members of Congress "are pretty much wedded" to it.
Id. at 43-44; see N.Y. Times, Dec. 9, 1963, p. 1, cois. 2-3. See also Lawrence, People's Right
to Elect and the Succession Law, N.Y. Herald Tribune, Dec. 9, 1963, p. 24, cols. 1-2 (author
says that law must be made elear on the point that a new Speaker succeeds if the former
one is acting as President).
President Johnson, who voted for the present law when he was a Representative, has
properly sought to give it some meaning by asking Speaker McCormack to sit in on sessions
of the National Security Council and "other key decision-making meetings" not "inconsistent
with his legislative responsibilities," N.Y. Times, Dec. 4, 1963, p. 1, cols. 6-7, and by
establishing a verbal agreement to cover cases of presidential inability, id., Dec. 6, 1963, p. 1,
col. 8. The Speaker's legislative role will prevent him from taking part in Cabinet meetings.
It is reported that under President Kennedy, Cabinet meetings were seldom held and, when
they were, they were seldom used for formulating over-all domestic and foreign policies.
Sidey, John F. Kennedy, President 68 (1963).
166. To be noted are the following facts about the state succession laws:
(1) Of the thirty-eight states having lieutenant governors as the immediate successor after
(a) The President pro tempore and the Speaker, respectively, are the next successors in
eighteen. Ala. Coast. art. V, § 127; Ark. Cost. amend. VI, § 4; Cal. Const. art. V, § 16;
Colo. Const. art. IV, §§ 13-15; Idaho Const. art. IV, §§ 12-14; Ill. Const. art. V, §§ 17, 19;
Iowa Const. art. IV, §§ 17, 19; Kan. Cost. art. I, §§ 11, 13; Minn. Const. art. V, § 6;
Miss. Const. art. V, § 131; Mo. Const. art. IV, § 11; Mont. Const. art. VII, §§ 14-16; Nev.
Const. art. V, §§ 17-18; N.Y. Coast. art. IV, § 5; N.C. Const. art. III, § 12; Ohio Coast.
art- III, §§ 15, 17; Okla. Coast. art. VI, §§ 15-16; Pa. Const. art. IV, §§ 13-14.
(b) The Speaker and President pro tempore, respectively, are the next successors in two.
S.D. Const. art. IV, §§ 6-7; Vt. Const. ch. II, § 24.
(c) The President pro tempore is the next successor in seven. (The Speaker is not in the
line of succession.) Conn. Coast. art. IV, §§ 17-19; Ind. Coast. art. 5, § 10; Ky. Coast.
§§ 84-85; La. Const. art. V, § 6; R.I. Coast. art. VII, §§ 9-10; S.C. Coast. art. IV, § 9;
Tex. Const. art. IV, §§ 16-17.
(d) The Speaker is the next successor in two. (The President pro tempore is not in the
line of succession.) Ga. Coast. art. V, § 2-3007; Neb. Coast. art. IV, §§ 16, 18.
(e) The secretary of state is next in line in seven. Del. Const. art. III, § 20; Mass. Coast.
pt. II, ch. II, § 2, art. III; Mich. Const. art. V, § 26; N.M. Const. art. V, § 7; NJ). Coast.
differed over the answers to these questions. Yet, the death of President
Kennedy has focused attention on a more lasting and acceptable
solution to the problem, one which has not received any real consideration
until now-the filling of a vacany in the Vice-Presidency. It is generally
agreed that the Vice-President is the official in the best position to
succeed to the Presidency and insure the continuum which was so
magnificently revealed during the weeks following the tragic and unexpected
death of President Kennedy. 107
The proposals to fill a vacancy differ in certain features. Former
President Truman and former Vice-President Nixon suggest the filling
of the vacancy by the last electoral college. 108 Senator Birch Bayh of
Indiana proposes that when an elected Vice-President succeeds to the
Presidency, he shall, within thirty days, nominate a person who would,
upon confirmation by the House and Senate become Vice-President. G9
Representative Ayres would have the President submit a list of not
less than three nor more than five names to either the House 7 ' or the
Senate' 7 ' from which a Vice-President would be selected. Senator Jacob
K. Javits of New York, on the other hand, would provide for the
Congress to elect a Vice-President subject to the President's confirmation. 72
on the Judiciary, 88th Cong., 2d Sess. - (1964) (statement of Senator Birch Bayh)
[hereinafter cited as 1964 Senate Hearings]. Interestingly, France adopted a presidential
system in 1962, without an office of Vice-President. Many Frenchmen are concerned about
the possibility of a chaotic situation arising if President Charles de Gaulle should die in
office. (The Constitutional successor is the President of the Senate.) Hence, there is demand
that an office of Vice-President be created. See Le Monde, Nov. 26, 1963, pp. 1, 9; Geniger,
France's No. 2 Man, N.Y. Times, Jan. 5, 1964, § 6 (Magazine), p. 24.
168. See Nixon, We Need a Vice President Now, Saturday Evening Post, Jan. 18, 1964,
p. 6; note 165 supra; Allen, Help Wanted: A US. Vice President, Reader's Digest
169. S.J. Res. 139, 88th Cong., 1st Sess. (1963) (joined in by Senators Pell, Randolph,
Bible, Moss and Burdick). The bill is not dear on whether the two Houses of Congress
would meet in joint session or separately and whether the House of Representatives would
vote by states or not. If the House would not vote by states, its say would be 435 as against
the Senate's 100.
To cover the case of a double vacancy, provision is made in the bill for a Cabinet line of
succession. Whoever succeeds does so for the rest of the term and he would be required to
nominate a person for Vice-President. The so-called Bayh bill also includes some provisions
on presidential inability. See note 201 infra.
170. H.R. 9305, 88th Cong., 1st Sess. (1963). A quorum of the House would consist of
a member or members from two thirds of the states and a majority of all the states would
be necessary to a choice. (The House would vote by states.)
The bill is dearly objectionable because it does not set any time by which the President
would have to submit the names and it could well result in no one obtaining a majority of
the states' votes. Moreover, it suffers from a more serious objection of constitutionality. The
only authority Congress has to fill a vacancy in the Vice-Presidency is when there are
vacancies in both the offices of President and Vice-President. See note 79 supra. Furthermore,
this bill is inconsistent with article II, section 1, clause 1 of the Constitution, which states
that the Vice-President shall "be elected, as follows." There is also an argument that the new
Vice-President would be required to serve a four-year term, since this is the only term
provided for in the Constitution. See note 130 supra. A constitutional amendment is clearly
171. H.J. Res. 818, 88th Cong., 1st Sess. (1963). This proposal calls for a constitutional
amendment under which a majority of the Senate would select the Vice-President. See note
172. S.J. Res. 138, 88th Cong., 1st Sess. (1963). Congress would meet in joint session
and if a quorum of each House were present, the Congress would elect by majority vote
Senator Kenneth B. Keating favors the election of two Vice-Presidents
every four years.'
Participation by the electoral college is objectionable as its functions
are purely ministerial in nature174 and, as Senator Bayh noted:
The Electoral College is not chosen, as is Congress, to exercise any considered
judgment or reasoning. Its members are chosen merely to carry out the will of the
voters in their respective states. . . . The Electoral College is not equipped, nor
should it be equipped, to conduct hearings on the qualifications of the nominee
submitted by the President. It would be a cumbersome body to try to assemble quickly
and to get to act quickly in emergencies. Much of the general public has no earthly
(each member having one vote) a Vice-President from the heads of the executive
departments or Members of Congress. As originally proposed, Congress was given exclusive
authority to select the Vice-President. This was later modified with the addition of the
words "by and with the advice and consent of the President." The reason for the change
was to assure that in electing a Vice-President, Congress would give "considerable weight
to the views of the President." N.Y. Times, Jan. 24, 1964, p. 15, col. 3.
Senator Ervin's S.J. Res. 147, 88th Cong., 2d Sess. (1964), would provide that within
ten days after a vacancy, Congress would meet in joint session to select a new Vice-President.
A majority vote would be necessary for a selection, each Member of Congress having one
vote. (If a double vacancy occurred, Congress would fill both offices within ten days, the
statutory successor acting in the interim.) Senator Gary's proposal is similar except that It
does not make clear how the House would vote. H.J. Res. 858, 88th Cong., 1st Ses. (1963).
173. S.J. Res. 143, 88th Cong., 2d Sess. (1964) ; see notes 70-71 supra. A similar proposal
has been made by Representative Auchincloss. H.J. Res. 868, 88th Cong., 1st Sess. (1963).
His Vice-Presidents would be First Vice-President and Second, instead of Executive and
Legislative. Senator Keating argues that his two Vice-Presidents would be selected from
the nxost competent people in the party, that most Senators, Representatives and Governors
would be interested in either position, that the legislative Vice-President would be no less
busy than the Vice-President is now, that there is much room for the President to delegate
important tasks to both, and that both Vice-Presidents would be of the President's party
and elected by the people. 1964 Senate Hearings-(statement of Senator Keating).
For Constitutions having two or more Vice-Presidents (or Designates), see Costa Rica
Const. art. 135 (two Vice-Presidents elected by people); Guat. Const. art. 166 (two
Designates elected by Congress from three proposed by President); Hond. Const. art. 201 (three
Designates elected by people); Pan. Const. arts. 138, 149 (two Vice-Presidents elected by
people). For Constitutions having only one Vice-President (or Designate), see Argen, Const.
art. 75; Bol. Const. art. 91; Braz. Const. art. 79; Dahomey Const. art. 9; Ecuador Const.
art. 100; El Sal. Const. art. 64; India Const. art. 48; Liberia Const. art. 3, § 2; Phil.
Const. art. 7, § 2. Ecuador, India and Liberia provide for special elections in case of
vacancies in the Vice-Presidency. Argentina, Bolivia, Brazil and India provide for a special
election in case of a double vacancy. For general information about the succession laws of
foreign countries having a President for Chief Executive, see Feerick, The Problem of
Presidential Inability-Will Congress Ever Solve It?, supra this volume, at 73, 105-10.
174. In fact, over the last few years, much attention has been given to proposals calling
for the abolition of the electoral college. See, e.g., Hearings Before the Subcommittee on
Constitutional Amendments of the Senate Judiciary Committee on Nomination and Election
of President and Vice President, 88th Cong., 1st Sess. (1961) (Parts 1-5); see generally
Margolin, Proposals to Reform Our Electoral System (Lib. Cong. Legis. Ref. Serv., 1960).
See S.J. Res., 88th Cong., 2d Sess. (1964) (Senator Smathers).
idea who their state's electors are and would be understandably hesitant to allow any
President of the United Statmesa.k1e75 an important decision like confirmation of a Vice
such unknown quantity to
Congress is a far better body to participate in the selection of a new
Vice-President, primarily because it is representative of the people and
its Members are in a position to exercise a considered judgment.Y Since
Congress is a political body, it would be preferable to give the
succeeding President the dominant role in the selection.' Otherwise, if a
different party were in control of Congress, a person of that party might
be elected, which could frustrate the purpose for obtaining a new
VicePresident, i.e., to give him the "on the job training" for assuming the
responsibilities of the Presidency, should he ever have to do so.
The new Vice-President should be of the same party as the President,
of compatible temperament, and of presidential ability. There is much
merit in the proposal that the President nominate a person subject to
congressional approval. The presidential candidate now selects his
running mate so that such a nomination would be consistent with
present practice. As the people must give their stamp of approval to the
presidential and vice-presidential candidates in order for them to be
elected, so, too, here their representatives in Congress would have to
give their approval to the nominee before he could become
Vice-President. The submission of a list of names by the new President to
Congress would not assure the election of the person with whom the
President could most effectively work.
Whatever proposal is adopted should contain a time limit within
which the President would have to make his choice. It probably would
be unwise to require action by Congress within a specified period of
time, though the inclusion of the word "forthwith" might serve a useful
purpose. In any event, it is very likely that Congress would act quickly,
putting partisan activities aside, to approve the President's choice.
Everything considered, it seems clear that the best way to solve the
problem of the succession is to fill the vacancy in the Vice-Presidency.
Secretaries of State and Speakers are not chosen on the basis of their
175. 1964 Senate Hearings
176. Of course, the most democratic way to fill the vacancy would be by direct election.
Such an election, however, would necessitate changes in the election laws of the various
states and would come at a time of distress (if the Vice-President had succeeded to the
Presidency), when conditions would be least conducive to the holding of a "political"
177. It is suggested that no special election should be held to fill vacancies in the offices
of President and Vice-President, should they be vacant at the same time. The acting
President would be in no position to act effectively as a President if he knew an election
was in the offing. Also, the people would be in no mood for such an election and the
political campaigns it would entail. See note 176 supra.
qualifications for the Presidency. A person selected to fill a vacancy in
the Vice-Presidency would, very likely, be chosen because of his
qualifications to substitute for the President. The chances of his being ready
and able to assume the responsibilities of the Presidency are far greater
than those of any other official.
III. PRESIDENTIAL INABILITY
President Kennedy's death has also revived the critical problem of
presidential inability. As former Vice-President Nixon noted: "It is a
tragic fact that it took a terrible crime in Dallas to remind us of a serious
defect in our constitutional process."'11 7 Had our late President lived,
hovering unconscious between life and death, discontinuity and
disorder might well have invaded the American Government. If a vital
decision had had to be made, would there have been anyone to make it?
Former President Eisenhower underscored the shocking deficiency in
our system in his recent book, when, in speaking of the period
surrounding his heart attack, he stated:
I was not required to make any immediate operational decisions involving the use
of the armed forces of the United States. Certainly, had there been an emergency
such as the detection of incoming enemy bombers, on which I would have had to
make a rapid decision regarding the use of United States retaliatory might, there
could have been no question, after the first forty-eight hours of my heart attack, of
my capacity to act according to my own judgment. However, had a situation arisen
such as occurred in 1958 in which I eventually sent troops ashore in Lebanon, the
concentration, the weighing of the pros and cons, and the final determination would
have represented a burden, during the first week of my illness, which the doctors
would likely have found unacceptable for a new cardiac patient to bear. 170
What would have happened if a "rapid decision" had been required
during the first forty-eight hours or a Lebanon situation had arisen
during the first week is anybody's guess.
A. The Problem
The problem of presidential inability has been with us for over one
hundred and seventy-five years. 8 0 It has been frequently discussed but
never solved. The problem exists because the Constitution of the
United States does not clearly provide that the Vice-President may
temporarily act as President during a period of inability,' 8 ' and because
178. Nixon, supra note 168, at 10.
179. Eisenhower, Mandate for Change 545 (1963). (Emphasis added.)
180. For studies of the problem, see Feerick, The Problem of Presidential
InabilityWill Congress Ever Solve It?, supra this volume, at 73; Hansen, The Year We Had No
President (1962); Silva, Presidential Succession (1962). For a listing of recent articles, see
note 3 supra.
181. See text accompanying note 1 supra.
it does not define inability, nor indicate who may initiate and decide the
questions of whether inability has occurred or ended. No more complete
statement of this manifold problem can be found than that of Chester A.
Arthur in his special message to Congress on December 6, 1881-over
eighty-two years ago. In that message, he asked Congress to solve a
problem with which he had been confronted for eighty days while
President Garfield lay dying. Said Arthur:
Is the inability limited in its nature to long-continued intellectual incapacity, or
has it a broader import?
What must be its extent and duration?
How must its existence be established?
Has the President whose inability is the subject of inquiry any voice in determining
whether or not it exists, or is the decision of that momentous and delicate question
confided to the Vice-President, or is it contemplated by the Constitution that Congress
should provide by law precisely what should constitute inability, and how and by what
tribunal or authority it should be ascertained?
If the inability proves to be temporary in its nature, and during its continuance
the Vice-President lawfully exercises the functions of the Executive, by what tenure
does he hold his office?
Does he continue as President for the remainder of the four years' term?
Or would the elected President, if his inability should cease in the interval, be
empowered to resume his office?
And if, having such lawful authority, he should exercise it, would the
VicePresident be thereupon empowered to resume his powers and duties as such?ien
Mainly because of the precedent established by John Tyler in 18 4 11s1
and because of the vagueness of the Constitution in regard to inability,
on three different occasions in our history (1881, 1919-1920, and
19551956) the country was for a time without an able President. On two of
these occasions, the federal administratidn simply drifted"1s while, on
182. 8 Richardson, Messages and Papers of the Presidents, 1789-1797, at 65 (1898).
183. See text accompanying notes 48-53 supra.
184. The first case is that of President Garfield, who was shot on July 2, 1881 and died
on September 19, 1881. During the disability his only governmental act was that of signing
an extradition paper. Not once did Vice-President Arthur see Garfield during the eighty
days. Arthur refused to act as President, although a majority of the Cabinet felt that he
should. However, a majority of the Cabinet and many authorities of the day believed that,
were he to act, he would become President for the remainder of the term.
The second case is that of President Wilson, who became ill on September 25, 1919, and
had a stroke on October 2, 1919. In the first six weeks of the inability, twenty-eight bills
became law by default of any action by the President. No official Cabinet meeting was held
until April 13, 1920. The President was shielded from all by his wife, doctor and close
friends so that the extent of his inability was never fully known. Vice-President Marshall
declined to act and Secretary of State Lansing was discharged for his efforts to give some
direction to the Government. See generally Smith, When the Cheering Stopped (1964), for
an excellent account of the plight of the Government during Wilson's inability.
For a detailed account of these inabilities, see Feerick, The Problem of Presidential Inability
-Will Congress Ever Solve It?, supra this volume, at 73, 93-98.
FORDHJA.M LAW REVIEW
the third, it was directed by a small group of men.188 However,
[The committee system] worked during the period of President Eisenhower's heart
attack mainly because . .. there were no serious international crises at that time.
But had there been a serious international crisis requiring Presidential decisions,
then . . . the committee system might not have worked.' 80
It has been estimated that the "sum total of the periods-hours, days,
weeks, even months-when the man in the White House was too sick
to be capable of exercising the powers vested in him by the Constitution"
isone year. 17
Attempts at Solution
The first act of any real significance in meeting the problem occurred
in the early part of 1958. Former President Eisenhower, in a letter
addressed to former Vice-President Nixon, formulated the following
(1) In the event of inability the President would-if possible-so inform the Vice
President, and the Vice President would serve as Acting President, exercising the
powers and duties of the office until the inability had ended.
(2) In the event of an inability which would prevent the President from so
communicating with the Vice President, the Vice President, after such consultation as
seems to him appropriate under the circumstances, would decide upon the devolution
of the powers and duties of the Office and would serve as Acting President until the
inability had ended.
(3) The President, in either event, would determine when the inability had ended
and at that time would resume the full exercise of the powers and duties of the
Office.' 8 8
185. During the recuperative perioa after President Eisenhower's heart attack of
September 24, 1955, Presidential Assistant Sherman Adams, Vice-President Nixon, Secretary of
State John Foster Dulles, Attorney General Herbert Brownell, Secretary of Treasury George
M. Humphrey, and White House Assistant Wilton Persons took charge of affairs. For an
excellent account of this period, see Eisenhower, op. cit. supra note 179, at 535-46; Nixon,
Six Crises 131-81 (1962).
186. CBS Reports, Transcript of "The Crisis of Presidential Succession," Jan. 8, 1964,
pp. 24-25 (former Vice-President Nixon).
187. Hansen, op. cit. supra note 180, at 1.
188. White House Press Release, March 3, 1958; see Public Papers of the Presidents of
the United States, 1958, at 188-89 (U.S. Gov't Printing Office, 1959). See also Nixon, Six
Crises 178-80 (1962). Says former President Eisenhower about the agreement: "We decided
and this was the thing that frightened me; suppose something happens to you in the turn
of a stroke that might incapacitate you mentally and you wouldn't know it and the people
around you, wanting to protect you, would probably keep this away from the public, so I
decided that what we must do is make the Vice-President decide when the President can no
longer carry on, and then he should take over the duties and when the President became
convinced that he could take back his duties, he would be the one to decide." CBS Reports,
supra note 186, at 23-24. Former Vice-President Nixon recently noted that the agreement Is
merely informal and that the problem of inability can only be solved by a constitutional
This agreement was followed, in turn, by President Kennedy and
VicePresident Johnson in August, 19 61,1s9 and, more recently, by President
Johnson and Speaker McCormack.' 90 The Johnson-McCormack
agreement is now in writing.' 9'
The above agreement serves a useful purpose but by no means is it
a satisfactory permanent solution to the problem. First, it does not
have the force of law, and has no binding effect if one or both of the
parties should decide to break it. Second, it does not deal with the
situation where the person next in line after the President becomes disabled
before the President does. Finally, it does not solve the constitutional
problem created by the Tyler precedent: Should the Vice-President
permanently replace the President in cases of inability?
C. A PracticalSolution
One of the best proposals to solve the problem on a permanent basis
was recently advanced by a special panel of lawyers called together by
the American Bar Association. 9 2 Included among its members were
such well-known personages as: former Attorney General Herbert
Brownell; Walter E. Craig, President of the American Bar Association;
Professor Paul A. Freund of the Harvard Law School; former Deputy
Attorney General Ross L. Malone; Dean Charles B. Nutting of the
National Law Center; Lewis F. Powell, Jr., President-elect of the
American Bar Association; and Sylvester C. Smith, Jr., former
President of the American Bar Association.' 9' The panel reached a consensus
which recommended that the Constitution be amended to provide:
(1) In the event of the inability of the President, the powers and duties, but not
the office, shall devolve upon the Vice-President or person next in line of succession
amendment. Nixon, op. cit. supra note 185, at 180. He states: "We just can't have this great
government of the United States run in that way, by the whims and the personal reactions
of whoever may be Vice President, or President, or the wife of the President at a critical
time." Id. at 27. See Nixon, supra note 168, at 10.
189. White House Press Release, August 10, 1961; see Public Papers of the Presidents
the United States, 1961
, at 561-62 U.S. Gov't Printing Office, 1962. See also 42 Ops. Att'y
Gen. No. 5 (1961).
190. N.Y. Times, Dec. 6, 1963, p. 1, col. 8.
191. Id. p. 19, col. 1.
192. See N.Y. Times, Jan. 22, 1964, p. 38L, cols. 7 & 8; Wash. Post, Jan. 22, 1964,
p. A2, col. 5.
193. Other members were Jonathan C. Gibson of Chicago; Richard Hansen of Nebraska,
author of "The Year We Had No President" (1962) ; Professor James C. Kirby, Jr. of
Vanderbilt University, former chief counsel of the Subcommittee on Constitutional Amendments
of the Senate Judiciary Committee; Martin Taylor, chairman of the Committee on Federal
Constitution of the New York State Bar Association; Edward Wright, chairman of the
House of Delegates of the American Bar Association ;'and the author.
for the duration of the inability of the President or until expiration of his term of
(2) The inability of the President may be established by declaration in writing of
the President. In the event that the President does not make known his inability, it
may be established by action of the Vice-President or person next in line of succession
with the concurrence of a majority of the Cabinet or by action of such other body
as the Congress may by law provide;
(3) The ability of the President to resume the powers and duties of his office shall
be established by his declaration in writing. In the event that the Vice-President and
a majority of the Cabinet or such other body as Congress may by law provide shall
not concur in the declaration of the President, the continuing disability of the
President may then be determined by the vote of two-thirds of the elected members of
each House of the Congress;
(4) In the event of the death, resignation or removal of the President, the
VicePresident or the person next in line of succession shall succeed to the office for the
unexpired term; and
(5) When a vacancy occurs in the office of the Vice-President the President shall
nominate a person who, upon approval by a majority of the elected members of
Congress meeting in joint session, shall then become Vice-President for the
Point (1) was inserted to eliminate the ambiguous wording of the
succession clause which prevented Vice-Presidents Chester A. Arthur
and Thomas R. Marshall from acting as President for fear that, by
virtue of the Tyler precedent, the Constitution would make them
President for the remainder of the term without regard to the cessation of
inability. 9 4 This clause makes it indisputably clear that the
Vice-President merely acts as President when the President is unable.'15
Point (2) would allow the President to declare his own inability since
there is no good reason why he should not be able to do so. If he used
this as a pretense for shirking his duties, impeachment would lie. The
panel felt that the giving of this power to the President might have the
effect of encouraging cooperation among him, the Vice-President, and
the Cabinet in inability situations-obviously, a thing to be desired.
The possibility of a disabled President's refusing to declare his inability
or actually being unable to make any determination at all required a
provision that someone or some body have the power to make the
determination in such cases. The panel believed that the Vice-President
194. See notes 48-53 supra. Since the Constitution clearly provides in article II, section
1, clause 6 (see text accompanying note 1 supra) that "the Same" devolves in all cases
(i.e., death, resignation, removal and inability), Tyler's assumption of the office of President
upon President Harrison's death proved to be a formidable barrier.
195. The expression "inability" was left general so that it would cover an almost
unlimited number of cases--e.g., physical or mental illness, kidnaping, wartime capture, etc.
It would not cover incompetence, lack of judgment, laziness, misconduct, or other possible
grounds for impeachment. See 1964 Senate Hearings - (statement of Senator Keating).
(or person next in line) should not have the sole power as he would be an
interested party and, therefore, might be too reluctant to make a
determination. The Vice-President was included in the determination process,
however, because it is his duty to act and, therefore, it is only proper
that he have some voice in determining when that duty is to be
performed. The Cabinet (or the heads of the executive departments) was
thought to be the best possible body."" The facts that Cabinet members
are close to the President, that they would, very likely, be aware of an
inability and would know if the circumstances were such that the
VicePresident should act, that they are part of the Executive Department,
and that the public would have confidence in the rightness of their
decision were the primary considerations for the selection of this body.
That such a Cabinet method would involve no violation of the principle
of separation of powers was underscored. Since the method would be
embodied in the Constitution, itself, it was thought desirable to include
a clause allowing Congress to change, by legislation, the body which
would function with the Vice-President. It was doubted that this power
would ever be resorted to but, if it were, any legislation passed under
it would be subject to presidential veto. The justification for such a
provision was that a constitutional amendment, with specifics, could
only be changed by amendment and that it therefore would be wise to
leave the door open for change by legislation.
Point (3) was designed to permit the President to resume his powers
and duties upon his own declaration in writing. Because of the possibility
that a President might say he 'was able when he was not, it was the
panel's consensus that the Vice-President, subject to approval by a
majority of the Cabinet, should have the power to prevent him from
acting in such a case. 9 7 In order to weigh the provision as heavily in
favor of the President as possible, review by Congress would be
required in such a case (the Vice-President would continue to act as
196. Although a Cabinet was not included in the Constitution as a mechanism for assisting
the President (see 1 Farrand 1, 70, 97, 110; 2 id. at 285, 328, 335-37, 367, S37-42), a
provision was nonetheless inserted into the Constitution providing that the President "may
require the Opinion, in writing, of the principal Officer in each of the executive Departments,
upon any Subject relating to the Duties of their respective offices... ." U.S. Coast. art. I,
§ 2, d. 1. Since the composition of the Cabinet is at the complete discretion of the President,
the so-called Cabinet proposals refer to the 'Heads of the Executive Departments." (The
use of the word "Cabinet" herein is meant in this context.) Thus, there can be no doubt
about who would be responsible for the decision.
197. The opinion was expressed that the only check on the President should be that of
impeachment. Against the use of impeachment were such arguments as that it takes too
long, has the effect of permanently removing the President from office, and may not even
be applicable to inability situations. See generally Feerick, The Problem of Presidential
Inability-Will Congress Ever Solve It?, supra this volume, at 73, 127-28.
President in the interim). It would take a two-thirds vote of the whole
Congress to prevent the President from resuming his powers and duties.
Point (4) would give constitutional status to the Tyler precedent in
cases of complete vacancy. 198
Point (5) would meet the problem of a vacancy in the
What is significant about the consensus of the panel is that the
method of determining inability and recovery would be embodied in the
Constitution. 20 ° It was agreed that this would be desirable for several
reasons. First, it was felt that an amendment which would merely give
Congress a broad power to establish (by legislation) a method for
determining the beginning and ending of an inability would be no
solution at all, since Congress would still have to agree on a method. Second,
since such a constitutional amendment would place the question of
inability in the "political arena" where the question of succession has
always been, it was believed advisable to include a method in the
Constitution itself. Third, as the Constitution is very specific as to how a
President is to be elected and removed, it should be similarly specific
with regard to divesting the President of his powers, even temporarily,
as in the case of inability. Fourth, the method might otherwise violate
the principle of separation of powers.
The panel proposal, which has been endorsed by the American Bar
Association, has received very favorable comment in and out of
Congress.20 ' Although other proposals have been advanced, 20 2 this proposal
presently offers the best hope of solving the problem. Without further
legislation, it is complete, practical, consistent with the principle of
separation of powers, gives the decisive role to those in whom the
people would most likely have confidence, involves only persons who
have been elected by the people or approved by their representatives,
and embodies checks on all concerned-the President, Vice-President
and Cabinet. And, since it is embodied in a constitutional amendment,
there would be no question about its constitutionality.
It is essential that this problem be solved now, while the tragedy of
November 22 is still fresh in our memory. As former Vice-President
involved. Burns, Let's Stop Gambling With the Presidency, Saturday Evening Post, Jan. 25,
1964, p. 12, at 16; Morris, The Muddled Problem of the Succession, N.Y. Times, Dec. 15,
1963, § 6 (Magazine), p. 11, at 63; Nixon, supra note 168, at 10; see also N.Y. Times,
Jan. 23, 1964, p. 18C, cal. 6 (views of Senator Mike Monroney);
(2) Justice Samuel H. Hofstadter of the New York Supreme Court and Jacob M. Dinnes
of New York suggest a self-executing constitutional amendment along these lines: Within
ten days after his inauguration, the President would appoint nine members to a
"Commission on Inability," to hold office at his pleasure. Three members would come from
the Cabinet, two from the Supreme Court, and two each from the House and Senate. The
commission, by six votes (two from the Cabinet and at least one from every other group)
could declare the President disabled. The cessation of the inability would take only a
majority vote. Provision is also made for the President to declare his own inability and,
in such a case, the cessation thereof. Hofstadter & Dinnes, Presidential Inability: A
Constitutional Amendment Is Needed Now, 50 A.B.A.J. 59 (1964). For other proposals of
inability commissions, see CBS Reports, Transcript of "The Crisis of Presidential
Succession," Jan. 8, 1964, pp. 29 (Senator Kenneth B. Keating of New York), 30-31 (former
President Truman); Bums, supra, at 12; H.R. 1164, 88th Cong., 1st Sess. (1963) (Representative
Louis C. Wyman of New Hampshire). See also Morris, Political Scientists Criticize the Law
on Line of Presidential Succession, N.Y. Times, Feb. 16, 1964, p. 48, col. 1 (summarizes
replies received by Senator Hubert H. Humphrey to a questionnaire).
(3) Senator Kenneth B. Keating and others suggest a constitutional amendment as follows:
"The commencement and termination of any inability shall be determined by such method
as Congress shall by law provide." S.J. Res. 143, 88th Cong., 2d Sess. - (1964); see Letter
From Martin Taylor to New York Times, Dec. 22, 1963, § 4 (The News of the Week in
Review), p. 6E, col. 7. This amendment was approved by the Subcommittee on
Constitutional Amendments of the Senate Judiciary Committee prior to President Kennedy's
death. N.Y. Times, Dec. 7, 1963, p. 26, col. 1.
(4) For a discussion of the proposals advanced prior to the President's death, see Feerick,
The Problem of Presidential Inability-Will Congress Ever Solve It?, supra this volume, at
73, 110-20; and see id. at 123-28, for the author's personal views.
203. A constitutional amendment is necessary because there is considerable doubt about
Congress' power to legislate in this area. The Constitution indicates that Congress has the
power to legislate on the succession, without more. If the Vice-President now has the power
to make the determination of inability, as many think, a statute could not, constitutionally
take it away. Prudence plainly dictates that the problem be solved by constitutional
amendment. See Feerick, The Problem of Presidential Inability-Will Congress Ever Solve It?,
supra this volume, at 73, 123-25.
Fifty years ago the country could afford to "muddle along" until the disabled President
got well or died. But today when only the President can make the decision to use
atomic weapons in the defense of the nation, there could be a critical period when
"no finger is on the trigger" because of the illness of the Chief Executive.20 4
The problems of the succession and inability are now before
Congress for action. Ideally, both should be solved, together if possible.
However, if anything is going to be solved, the problem of inability
should be. It has first claim for action. It has been left unsolved for
almost two centuries. Thus, as Senator Bayh, the chairman of the Senate
Subcommittee on Constitutional Amendments which is studying the
problems, noted: "Our obligation to deal with the question of
presidential inability is crystal clear. Here we have a constitutional gap-a
blind spot, if you will. We must fill this gap if we are to protect our
nation from the possibility of floundering in the sea of public confusion
and uncertainty." 0 5 If this and the problem of the succession are not
solved now, there is good reason to believe, as former Vice-President
Nixon well put it, that "once the elections of '64 are held-[and] we
have a new President and Vice President-this is going to be put
away until we have another great international crisis. . . . [I]t would
be a great tragedy if the American people, at this particular time, missed
35. Until February , 1933 , when the twentieth amendment was adopted, the term began on March 4 . Now, of course, it begins on January 20. It is to be noted that under the twelfth amendment the Vice-President must obtain a majority of the electoral votes , In 1836 , Richard M. Johnson failed to receive a majority so that the Senate had to choose between him and another. (In such a case, a quorum of the Senate is two-thirds of the membership and a majority of the whole number is necessary to a choice.) Johnson emerged as the winner .
36. For an interesting discussion of the thesis that these words would prevent Eisenhower from running for the Vice-Presidency, see Krock, Loophole in Presidential Two-Term Limit , N.Y. Times , Oct. 8 , 1963 , p. 42 , col . 6; Krock, 'Ike for V.P. ' Idea Perished 160 Years Ago , N.Y. Times , Oct. 10 , 1963 , p. 40 , col . 6.
37. 1 Annals of Cong . 672 ( 1789 ).
38. Id . at 674. See also id . at 673-82.
39. Maclay , The Journal of William Maclay 72 ( 1927 ). See Field, supra note 9 , at 374-75.
46. Richard M. Johnson, the incumbent Vice-President at the time, was unable to obtain his party's renomination.
47. For a complete listing of our Vice-Presidents, see Information Please Almanac 568 ( 1964 ). In all, there have been thirty-seven Vice-Presidents. Seven have been elected for two terms- Adams , Clinton, Tompkins, Calhoun, Marshall, Garner, and Nixon-and six have become Presidents by election- Adams , Jefferson, Van Buren, T. Roosevelt , Coolidge, and Truman.
48. 10 Adams, Memoirs of John Quincy Adams 456-57 ( 1876 ).
49. See remarks of Representative Henry A. Wise of Virginia, Cong . Globe, 27th Cong., 1st Sess . 4 ( 1841 ). For the thesis that Tyler was wrong-that under the Constitution he remained Vice-President, acting as President-see Silva, op . cit. supra note 26.
50. Fraser , Democracy in the Making 158 , 160 ( 1938 ) (The Jackson-Tyler Era). For an argument that he was not constitutionally required to take the presidential oath because succession was one of his constitutional duties for which he had already taken an oath, see Feerick , supra note 5 , at 90 &n.84.
51. 10 Adams, op. cit. supra note 48 , at 463-64.
73. See note 3 supra. For an extremely interesting panel discussion on the general subject, see CBS Reports, Transcript of "The Crisis of Presidential Succession," Jan. 8 , 1964 .
74. See Finney , Line Of Succession, N.Y. World-Tel. & Sun , Dec. 27 , 1963 , p. 21 , cols . 3 -7; Viorst, Next in Line for the Presidency , N.Y. Post , Dec. 8 , 1963 , § 2 ( lMagazine ), p. 5; U.S. News & World Rep., Dec . 30 , 1963 , p. 26 ( "Size-Up of New 'Vice President!" ). See also Albright McCormack , Hayden Won't Quit , Wash. Post, Dec. 12 , 1963 , p. 1 , cols . 4- 7 .
75. 3 U.S.C. § 19 ( 1958 ).
76. Eisenhower , When the Highest Office Changes Hands, Saturday Evening Post, Dec. 14 , 1963 , p. 15 .
77. Nixon , supra note 71, at 10.
78. 2 Farrand 427.
79. The words "until such disability be removed, or a President shall be elected" were inserted on the motion of James Madison so as to permit a special election for filling a vacancy in the office of President. Significantly, at the Virginia Ratifying Convention, James Madison answered an objection of George Mason that the Constitution had no special election provision with these words: "When the President and Vice President die, the election of another President will immediately take place; and suppose it would not, all that Congress could do would be to make an appointment between the expiration of the four years and the last election, and to continue only to such expiration." 3 Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 487-88 ( 1881 ed.).
80. As will be noted from a reading of this clause (see text accompanying note I supra), the expression "officer of the U.S." was shortened to "officer" and the semicolon was deleted .
81. 2 Annals of Cong . 1860 ( 1790 ).
82. Id . at 1902 . James Madison objected to the Chief Justice on the ground that there would be a blending of the executive and judiciary. He objected to the President pro tempore on the ground that as a Senator, he would be subject to instruction by his state and would also be holding two offices. In his opinion, the best successor was the Secretary of State . Id. at 1904 . See note 97 infra.
83. Id . at 1914- 15 .
84. 3 Annals of Cong . 31 ( 1791 ).
93. Id . at 401. A motion to add the senior Associate Justice was not passed .
94. Id . at 402. Baldwin , Fitzsimons, Gilman, Madison and Williamson voted for It, while Gerry voted against it .
95. See 3 Rives, History of the Life and Times of James Madison 223 ( 1868 ) ; 8 Works of Alexander Hamilton 261 (Lodge ed. 1886); 1 Works of Fisher Ames 114 ( 1854 ).
96. 3 Annals of Cong . 417 ( 1791 ). Three delegates to the Constitutional ConventionDayton, Fitzsimons and Gerry-favored the withdrawal . Four did not-Baldwin , Gilman, Madison and Williamson.
123. See the remarks at 14 id . at 956 ( 1883 ) (Senator Sherman); 17 id . at 216 ( 1885 ) (Senator Maxey) .
124. See the remarks at 14 id . at 688- 89 ( Senator Hoar) , 954 (Senator Beck), 955 (Senator Dawes) ( 1882 ) ; 17 id . at 686 ( 1886 ) (Senator Dibble) .
125. See the remarks at 14 id . at 689 ( 1882 ) (Senator Hoar) , 878 ( 1883 ) (Senator Garland) , 915 ( 1883 ) (Senator Maxey) .
126. See the remarks at 17 id . at 670 ( 1886 ) (Senator Peters) . For a good answer to this objection, see 17 id . at 216 ( 1885 ) (remarks of Senator Maxey) .
127. See the remarks at 14 id . at 690 ( 1882 ) (Senator Edmunds) , 956 ( 1882 ) (Senator Dawes) , 960 ( 1883 ) (Senator Ingalls); 17 id . at 686 ( 1886 ) (Senator Osborne) .
128. 24 Stat. 1 ( 1886 ).
129. See the remarks at 14 Cong. Rec. 689 ( 1882 ) (Senator Hoar) , 954 ( 1883 ) (Senator Beck) ; 17 id . at 216 ( 1885 ) (Senator Maxey) , 688 ( 1886 ) (Senator Baker) .
130. See the remarks at 14 id . at 916 ( 1883 ) (Senator Maxey); 17 id . at 224 ( 1885 ) (Senator Morgan) (the words "shall be elected" in the Constitution mean every four years ), 248 ( 1885 ) (Senator Evarts) , 685 ( 1885 ) (Senator Dibble) , 690 ( 1886 ) (Senator Ryan) . For views that special elections were intended, see 14 id . at 690 ( 1882 ) (Senator Edmunds) , 921 ( 1882 ), 955 ( 1883 ) (Senator Dawes) . See also 14 id. at 957 ( 1883 ) (Senator Sherman); 17 id .at 224 ( 1885 ) (Senator Teller) .
131. The feature which provides that the acting President serves "until another President shall be elected" is severely criticized in Hamlin , The Presidential Succession Act of 1886 , 18 Harv. L. Rev. 182 ( 1905 ). The author takes the position that these words are both confusing and unwise in that the tenure of the successor is not defined (i.e., whether or not it is for the rest of the presidential term) and that they would allow Congress to harass the
142. He stated: "[Ilt probably would upset things too much within a period of 4 years to have four people fill the office of President-the President, the Vice President, the Speaker of the House-and then have an election to get the fourth person . " Id. at 7017.
143. "I feel that the Speaker should continue to fill that unexpired term of the Presidency in order to avoid creating disunity and division which ahvays occurs in a national election at a time when we would need the greatest unity in our country . " Id. at 7013 . He went on to point out that a special election law passed at a time when one was acting as President could be vetoed by that person .
144. Such a provision, he said , was "impractical . . . cumbersome . . . expensive and of doubtful constitutionality." Id. at 7020.
145. Id . at 7024- 25 . The provision was believed by some to he unconstitutional (-see , e.g., id. at 7022 (remarks of Representative Springer)). See notes 129-30 supra.
146. In 1945, the Speaker was Sam Rayburn, one of the country's ablest public servants. In a sense, a vote for the Sumners bill was considered a vote for Rayburn . In 1946 , Joseph W. Martin, Jr., of Massachusetts became Speaker. This further background should be noted: When Truman became President , Edward R. Stettinius , Jr., was Secretary of State. It was felt by many Members of Congress that "he had not had sufficient governmental experience to exercise the duties of President." 25 Cong . Dig. 67 ( 1946 ). On June 27, Stettinius resigned his position, and on July 3, former Senator James E. Byrnes was appointed as his successor. Interest in adopting a new law waned . See S. Con. Res . 50 , 79th Cong., Zd Sess. ( 1946 ), which looked to setting up a committee of Members of both Houses to study the problems involved. It was never adopted by the House .
147. See Letter from President Truman to President pro tempore Vandenberg and Speaker Martin , Feb. 5 , 1947 , in 93 Cong. Rec. 7693 ( 1947 ).
148. S. 564 , 80th Cong., 1st Sess . ( 1947 ).
149. The Sumners bill was not clear on this point During the House debates on the Sumners bill, Representative Judd argued that the Speaker and President pro tempore did not have to resign because they would not be holding any office but merely acting as President. 91 Cong . Rec. 7027 ( 1945 ).
198. See text accompanying note 52 supra .
199. See text accompanying notes 168-72 supra.
200. For a discussion of the advisability of including the method in the Constitution itself, see Feerick, The Problem of Presidential Inability-Will Congress Ever Solve It? , supra this volume, at 73 , 120 - 21 . Id. at 115-16, where the various proposals not to include the method are discussed .
201. See Krock , Basic Principles Emerging From the Fog , N.Y. Times , Jan. 24 , 1964 , p. 26 , col . 6; N.Y. Times , Jan. 22 , 1964 , p. 38L , cols . 7- 8 ; Wash. Post, Jan. 26 , 1964 , p. E6 , cols. 1- 2 ; Wash. Post, Jan. 23 , 1964 , p. Al, cols . 2- 3 ; Wash. Post, Jan. 22 , 1964 , p. A2, col. 5 . See also T. Lewis , Capitol Stuff, Daily News, Jan. 23 , 1964 , p. 4 , cols . 5- 6 ; 1964 Senate Hearings - (statements of Senator Birch Bayh and Professor James C. Kirby , Jr.).
The proposal of the ABA panel is essentially in agreement with that of Senator Birch Bayh's resolution , S.J. Res . 139 , 88th Cong., 1st Sess . (1963), with these exceptions: The Bayh proposal would not give Congress any power at all to change the method embodied in the amendment and it would require the Vice-President (provided he is supported by a majority of the Cabinet), in a case where he disagrees with the President's declaration of recovery, to bring the matter before Congress within seven days. For similar proposals , see S.J. Res . 28 , 88th Cong., 1st Sess . ( 1963 ) (former Senator Estes Kefauver); same , S.J. Res . 19 , 87th Cong., 1st Sess . ( 1961 ) ; H.R.J. Res . 272 , 88th Cong., 1st Sess . ( 1963 ) (Representative John V . Lindsay); same, H.R.J. Res . 529 , 87th Cong., 1st Sess . ( 1961 ).
202. Some of the recent proposals are: (1) That a blue-ribbon presidential commission be established to study all the problems Nixon , supra note 168, at 10. 1964 Senate Hearings - . CBS Reports , Transcript of "The Crisis of Presidential Succession," Jan. 8 , 1964 ,