The 1792 statute thus added first the Senate president pro tempore and second, the Speaker of the House as successors should there be no vice president to serve. (Creating a dispute over separation of powers that has kept legal scholars busy ever since.) At that time, before the 25th Amendment, there was no way to fill a vice-presidential vacancy, and Congress was often out of session for months at a time. With no vice president, and no President pro tempore or House Speaker in place, a dangerously long gap could ensue.
Between 1792 and 1886, four presidents and five vice presidents died in office and five more times there was no one occupying the vice presidency for other reasons. Pressure grew to designate a longer line of succession. In the Presidential Succession Act of 1886, Congress eliminated Congress from the line of succession and instead named Cabinet secretaries in order of the date on which their agencies were created, similar to James Madison’s preference almost 100 years earlier.
But the 1886 Act wasn’t the end of the story. In 1945 Harry Truman, who had served as a U.S. Senator from Missouri for ten years, believed elected officials rather than appointees should fill a Presidential vacancy. Congress agreed, and the 1947 Presidential Succession Act kept the Cabinet line of succession but put at the head of it the Speaker of the House, followed by the Senate President pro tempore.
The problem of presidential incapacitation among other things was resolved by the 25th Amendment, which established a process initiated by the vice president and Cabinet for Congress to transfer the powers and duties of the president to the vice president. But the possibility of dual incapacitation – president and vice president – has still not been addressed.
There are solutions to strengthen government continuity, and some are obvious. Amend the Presidential Succession Act of 1947 to remove House and Senate leaders from the line of succession and restore the Cabinet-only system that was in place from 1886 to 1947. This would make it more likely that someone from the president’s party would assume the office, alleviate legal scholars’ concerns about separation of powers, and prevent a leadership vacuum in Congress at a time of crisis.
Congress should explicitly remove acting secretaries (who are not Senate-confirmed) from the line of succession; clarify who can act under the 25th amendment to remove an incapacitated president if the vice president is also incapacitated; and define a process for choosing successors from the same party as the president-elect and vice president-elect if both were to die before Inauguration Day.
Reconstituting a quorum of the House of Representatives is a tougher nut. The House rule that allows a very small number of Members to constitute a quorum, has stirred debate over whether it is Constitutional or politically viable. A recent effort to create a joint select committee on Congressional continuity stalled. However, one small step each chamber could take now would be to amend its rules to automatically allow remote operations in the event of another disaster that — like COVID — disrupts their ability to meet in person.
The United States has weathered many crises in its history, but in every case it made the preservation of its political institutions paramount. Even during the Civil War, Congress and the presidency continued to function despite the departure of elected representatives from the South. Today’s world poses a variety of threats that could devastate our government’s top leadership. Congress needs to pass bipartisan legislation now to reassure Americans that there will be leaders ready to govern when they are needed most.
Jean Parvin Bordewich is president of Guilford College in Greensboro, NC. She was a member of the second Continuity of Government Commission and is a former staff director of the Senate Committee on Rules and Administration.
