Article II’s Presidential Succession Clause, ratified in 1788, empowers Congress to establish the line of succession to the presidency in the event that the President and Vice President are unable to discharge the powers and duties of the presidency.1 Congress first exercised this power in the Presidential Succession Act of 1792.2 The Act provided that the President pro tempore of the Senate would serve as Acting President until a new President was elected or the President’s inability ended.3 If the President pro tempore’s office was vacant, then the Speaker of the House would serve as Acting President.4

Congress modified the line of presidential successors after the Vice President in the Presidential Succession Act of 1886 by replacing congressional leaders with the heads of the Cabinet departments in the order of each department’s creation.5 Several decades later, in the Presidential Succession Act of 1947, Congress designated a new line of successors composed of (1) the Speaker of the House; (2) President pro tempore of the Senate; and (3) Cabinet secretaries in the order of each executive department’s creation.6 Despite these legislative efforts7 —and various amendments to the Constitution that touched upon presidential succession8

amends. XII, XX. For additional information on succession procedures that apply during the presidential election campaign and transition period, see generally Thomas H. Neale, Cong. Rsch. Serv.

No. R44648, Presidential Elections: Vacancies in Major-Party Candidacies and the Position of President-Elect (2020)

, https://crsreports.congress.gov/product/pdf/R/R44648; John Rogan, Reforms for Presidential Candidate Death and Inability: From the Conventions to Inauguration Day, 90 Fordham L. Rev. 583 (2021) (addressing pre-inaugural succession and disability scenarios).—the nation often grappled with difficult questions about presidential vacancy and inability before the Twenty-Fifth Amendment’s ratification.9

Footnotes

1

U.S. Const. art. II, § 1, cl. 6.

2

Act of Mar. 1, 1792, ch. 8, § 9, 1 Stat. 239, 240 (repealed 1886).

3

Id. Presumably, any successor would have to meet the Constitution’s qualifications for the presidency—that is, the President must be a natural-born citizen, at least 35 years of age, and a resident of the United States for at least fourteen years. See U.S. Const. art. II, § 1, cl. 5; ArtII.S1.C5.1 Qualifications for the Presidency.

4

Act of Mar. 1, 1792, ch. 8, § 9, 1 Stat. 239, 240–41 (repealed 1886). Section 10 of the Act provided for a special election to fill a presidential vacancy before the next scheduled presidential election when both the presidency and vice presidency were vacant (and a statutory successor was serving as Acting President) unless the vacancies occurred late in the presidential term. This section was never used before its repeal.

5

Act of Jan. 19, 1886, ch. 4, §§ 1–3, Pub. L. No. 49-4, 24 Stat. 1, 1–2 (Succession Act of 1886) (repealed 1947) (requiring any presidential successor to have been confirmed by the Senate as the Cabinet department head, eligible to assume the office of the presidency, and not under threat of impeachment in the House of Representatives).

6

Presidential Succession Act of 1947, ch. 264, § 1, Pub. L. No. 80-199, 61 Stat. 380 (codified, as amended, at ) (requiring an official to resign before succeeding to the presidency; establishing rules for terminating an official’s service as Acting President when another eligible individual higher in the line of succession qualifies or becomes able to fulfill the duties of President; and addressing eligibility to succeed to the presidency). The Cabinet secretaries who may be eligible to succeed to the presidency are the Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, and Secretary of Homeland Security. . See also Operation of the Twenty-Fifth Amendment Respecting Presidential Succession, 9 Op. O.L.C. 65, 69 (1985) (citing and opining that “acting heads of departments and recess appointees are not Presidential successors” under the Presidential Succession Act).

7

The presidential succession laws addressed only the line of presidential successors after the Vice President. They did not address vice presidential succession or presidential inability.

8

Prior to the Twenty-Fifth Amendment’s ratification, several constitutional amendments had addressed issues of presidential succession that might arise between the holding of a presidential election and the beginning of the new President’s term. See, e.g.,

U.S. Const.

amends. XII, XX. For additional information on succession procedures that apply during the presidential election campaign and transition period, see generally Thomas H. Neale, Cong. Rsch. Serv.

No. R44648, Presidential Elections: Vacancies in Major-Party Candidacies and the Position of President-Elect (2020)

, https://crsreports.congress.gov/product/pdf/R/R44648; John Rogan, Reforms for Presidential Candidate Death and Inability: From the Conventions to Inauguration Day, 90 Fordham L. Rev. 583 (2021) (addressing pre-inaugural succession and disability scenarios).

9

See and