Presidential Succession (CongressionalGlossary.com)

From the Congressional Glossary – Including Legislative and Budget Terms

Presidential Succession


President Gerald Ford – Remarks on Taking the Oath of Office, August 9, 1974

Under Article II and the Twelfth, Twentieth, and Twenty-fifth Amendments to the Constitution, Congress has critical roles to play in the selection of the president and vice president during the quadrennial election process and in the event of a vacancy between elections.

Article II, Section 1, as modified by the Twelfth Amendment, established Congress’ role in the electoral college system. Under these constitutional provisions and federal law, Congress, in joint session on January 6 (or another date set by Congress) following a presidential election, receives and counts electoral votes, and the election of the president and vice president is announced. Congress is empowered to resolve objections regarding the electoral votes at that time.

In order to be elected president or vice president by the electoral college, a candidate must receive a majority, and not merely a plurality, of the electoral votes (currently 270 of 538). The Twelfth Amendment, as modified by the Twentieth Amendment, established a system for the contingent election of the president and vice president in the event that no candidate attains this threshold. In the case of the president, the House of Representatives chooses the president from among the three candidates with the largest numbers of electoral votes; each state delegation casts a single vote. A majority of states is needed for election. Although the Twenty-third Amendment to the Constitution provided electors for the District of Columbia, it did not provide the District with a role in a contingent election. In the event that no vice presidential candidate receives a majority of electoral votes, the Senate chooses between the two candidates with the largest numbers of electoral votes; each senator has one vote, and a majority of votes is needed for election.

The Twelfth Amendment was proposed by Congress in 1803 in response to difficulties encountered during the presidential election of 1800-1801. After ratification by the states, the Twelfth Amendment went into effect in 1804. There have been two contingent elections under its provisions. The president was elected by the House of Representatives in 1825, and the vice president was elected by the Senate in 1837. The Twelfth Amendment mandates some of the specific procedures that must be used during a contingent election. Other procedures were developed by the House and Senate during the respective contingent elections, but those procedures could be altered in the event of another contingent election.

The Twentieth Amendment provided that the vice president serve as acting president until the House is able to choose a president, should the House be unable to reach a decision by inauguration day, January 20. (The Twentieth Amendment provided that a president’s and vice president’s terms of office end at 12:00 noon on January 20 following a presidential election.) This amendment also allows Congress to establish by law who serves as acting president in the event that neither a president nor a vice president is qualified by January 20. In the Presidential Succession Act of 1947 (61 Stat. 380; 3 U.S.C. § 19), Congress addressed this matter, naming first the Speaker of the House, alternatively the president pro tempore of the Senate, and then the Cabinet secretaries in the order in which their departments were created (beginning with the secretary of state). To serve, an individual would need to meet the constitutional qualifications required for any president–a natural-born citizen, a resident of the United States for at least fourteen years, at least thirty-five years old, and not disqualified by previous service as president.

President
Vice President
Speaker of the House
President pro tempore
Secretary of State
Secretary of the Treasury
Secretary of Defense
Attorney General

Article II, Section 1, Clause 6 of the Constitution originally provided for presidential succession in the event of “the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office.” The Twenty-fifth Amendment, ratified in 1967, superseded this provision. It established a role for Congress in confirming a president’s nomination to fill a vice presidential vacancy. The amendment also provided a role in determining, under certain circumstances, whether a president was “unable to discharge the powers and duties of his office.”

Also see Electoral College; House; Impeachment; Mid-Term Election; President of the United States; President pro tempore; Speaker; Vice President; § 8.90 Congress and the Executive: Presidential Election and Succession, § 8.100 Congress and the Executive: Impeachment, in Congressional Deskbook.

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