Opinion: A Detailed Look at the Presidential Line of Succession
By Dr. Stephen Schwalbe
Faculty Member, Public Administration at American Public University
With the multiple on-going investigations into alleged Russian interference in President Trump’s 2016 presidential election campaign, there is a remote possibility that Donald Trump could be impeached by the House of Representatives and then convicted by the Senate. As a result he would be removed from office.
If that were to happen, Vice President Mike Pence would automatically become President. The question at that point is who would be the new Vice President? According to the 25th Amendment of the Constitution, Pence could nominate whomever he wanted as his Vice President. His nominee would need only a simple majority vote by both chambers of Congress to assume the vice presidency.
What becomes interesting here is if Pence left office (for example, the unlikely scenario of Pence resigning in protest, etc.) before Congress could act. Who then would become President with no Vice President in place?
Presidential line of succession begins with the Speaker of the House
According to the 1947 Succession Act, with no Vice President available to become President, the line of succession begins with the Speaker of the House followed by the President pro tempore of the Senate (since 1890, this office has been held by the longest serving senator).
After these two congressional positions, the line of succession reverts to the secretaries of the 15 executive branch departments (the Cabinet) in chronological order of when each department was formed. This means the Secretary of State, the first Cabinet position created by President George Washington, would be in line behind the President pro tempore of the Senate.
However, is it legal for members of Congress to be in the line of presidential succession? According to Article I, Section 6, Clause 2 of the U.S. Constitution (the Incompatibility Clause), members of Congress cannot be in the line of succession. It states: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office….”
So, the only way a Senator or Representative could ascend to the presidency would be to pass another Succession Act (which is unlikely) or have the United States Supreme Court adjudicate it. However, it would require a unique set of circumstances to result in a court case accepted for adjudication by the Supreme Court. As such, the 1947 Succession Act will continue to determine the line of succession to the presidency.
It’s Not Unprecedented to Have a President with No Vice President
It would not be unprecedented to have a President with no VP. Prior to World War II, there were 14 instances when there was no Vice President. Since World War II, however, there have been only four occasions when that was the case, the last time more than 40 years ago.
Harry S. Truman did not have a Vice President during the more than three years of his first term as President beginning in 1945, when President Franklin Roosevelt died in office. There was no VP for well over a year after Lyndon Johnson became President following the assassination of President Kennedy in 1963. Johnson chose Minnesota Senator Hubert Humphrey as his VP running mate in 1964.
Then, there were two brief periods when the country had no Vice President: In 1973, following Spiro Agnew’s resignation as VP and Gerald Ford’s confirmation in the Nixon administration. The last occurrence came in 1974, when Ford became President upon Richard Nixon’s resignation and Nelson Rockefeller was confirmed as Vice President. Rockefeller served as Ford’s Vice President until 1977, when Jimmy Carter defeated Ford in the presidential election.
With the recent evolution of the Office of Vice President into a position of considerable power, not having a VP in office is much more significant than ever before. As such, it is unlikely that we would have a Vice President missing for more than a few months any time in the future.
About the Author
Dr. Stephen Schwalbe is an associate professor at American Public University. He is also an adjunct professor at Columbia College and Embry-Riddle Aeronautical University. Stephen received a Ph.D. in Public Administration and Public Policy from Auburn University in 2006. His book about military base closures was published in 2009.