When declaring independence from Great Britain in 1776, the United States rejected the rule of King George III and the British Parliament.1 The Constitution’s Framers departed from the British tradition of constitutional monarchy by vesting the federal executive power in an elected President who would serve a four-year term and was subject to impeachment and removal from office.2 When designing the American presidency, the Framers confronted questions about who would discharge the President’s duties if the President died, resigned, became unable to fulfill his responsibilities, or was removed from office.3

The Articles of Confederation that preceded the Constitution did not create an independent executive branch, contemplate executive succession, or address presidential inability.4 However, several Founding-era state constitutions addressed gubernatorial vacancies or inabilities.5 Typically, these state constitutions provided that a subordinate officer (e.g., lieutenant governor) would temporarily assume the executive’s powers and duties during a vacancy, absence, or inability.6 A few state constitutions established procedures for permanently filling vacancies in the governor’s or lieutenant-governor’s office until the next election.7 The Framers were likely aware of such executive succession laws when they drafted the Constitution.8

Footnotes

1

The Declaration of Independence (1776).

2

See The Federalist No. 69(Alexander Hamilton), https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-wrapper-25493456; see also U.S. Const. art. II, §§ 1, 4. At the time of the Federal Convention in 1787, various laws and practices determined succession to the British throne. These included the common law, constitutional customs, and Acts of Parliament. 1 William Blackstone, Commentaries on the Laws of England 183–211 (1765). If the British King or Queen died, the order of succession depended on such factors as hereditary descent, gender, birth order, and religious affiliation. See id. A Convention Parliament, which assembled without a royal summons, could enact laws filling vacancies when a King abdicated the throne. Id. at 204–07.

3

See

4

See Articles of Confederation of 1781, https://www.archives.gov/milestone-documents/articles-of-confederation. The Articles created the ceremonial position of “President of the Congress of the United States,” but the incumbent did not exercise executive power. U.S. Const. art. IX. The state legislatures appointed delegates to the Confederation Congress for one-year terms and could recall them at any time. U.S. Const. art. V.

5

See, e.g., Mass Const. of 1780, pt. 2, ch. 2, § 2, art. III ( “Whenever the chair of the governor shall be vacant, by reason of his death, or absence from the commonwealth, or otherwise, the lieutenant governor, for the time being, shall, during such vacancy, perform all the duties incumbent upon the governor, and shall have and exercise all the powers and authorities, which by this constitution the governor is vested with, when personally present.” ); Md. Const. of 1776, The Constitution, or Form of Government, cl. XXXII ( “That upon the death, resignation, or removal out of this State, of the Governor, the first named of the Council [to the Governor elected by the General Assembly], for the time being shall act as Governor, and qualify in the same manner; and shall immediately call a meeting of the General Assembly, giving not less than fourteen days’ notice of the meeting, at which meeting a Governor shall be appointed, in manner aforesaid, for the residue of the year.” ); Va. Const. of 1776 ( “[The Privy Council] shall annually choose, out of their own members, a President, who, in case of death, inability, or absence of the Governor from the government, shall act as Lieutenant-Governor.” ).

6

See sources cited supra note 5. Some state constitutions addressed dual executive branch vacancies. For example, Massachusetts’ Constitution of 1780 authorized the Council to the Governor to exercise executive powers “[w]henever the office of the governor and lieutenant-governor shall be vacant by reason of death, absence, or otherwise.” Mass Const. of 1780, pt. 2, ch. 2, § 3, art. VI; see also N.Y. Const. of 1777, art. XXI (providing that the president of the state senate would exercise the governor’s powers until the next election if dual vacancies arose in the governor and lieutenant-governor’s offices).

7

E.g., Md. Const. of 1776, The Constitution, or Form of Government, cl. XXXII (requiring the state’s General Assembly to appoint a new governor to serve until the next election); S.C. Const. of 1778, art. VIII (establishing procedures for filling vacancies in the governor’s and lieutenant-governor’s offices).

8

E.g., John D. Feerick, The Problem of Presidential Inability—Will Congress Ever Solve It?, 32 Fordham L. Rev. 73, 81 (1963) (observing that many of the Framers had played a role in drafting state constitutions).