In the aftermath of the horrific events of Sept. 11, 2001, after the airplanes commandeered by terrorists obliterated the World Trade Center and struck the Pentagon, frightening questions lingered: What if the fourth (and possibly fifth) plane had hit their targets in the capital? Would they have wiped out Congress and possibly the White House and president, too? Could the federal government have responded to such a national crisis? Who would quickly fill the places of the dead officials?
Since 9/11, additional threats have emerged: the anthrax mailings, violence against politicians of both parties, the COVID pandemic, and the Jan. 6, 2021, attack on the US Capitol that threatened the Vice President, as well as the Speaker and Senate president pro tempore and other members of Congress. These events proved that no disaster is now unthinkable.
Following the existing rules for succession could easily inflame political discord at the worst possible time, turning a catastrophe into an enduring national nightmare. Imagine the political uproar if Speaker Nancy Pelosi succeeded President Donald Trump, or Speaker Mike Johnson replaced President Joe Biden should both President and Vice President have been killed.
Imagine the political uproar if Speaker Nancy Pelosi succeeded President Donald Trump, or Speaker Mike Johnson replaced President Joe Biden should both President and Vice President have been killed.
In the wake of 9/11, two Washington, DC, think tanks, the American Enterprise Institute (AEI) and the Brookings Institution, convened a bipartisan Continuity of Government commission in 2002 to study the state of laws regarding succession. Congress enacted none of its recommendations. A second bipartisan commission, hosted by AEI in 2021, published updated recommendations for Congress and the Presidency. Again, Congress paid scant attention. Both commissions were co-directed by John Fortier and Norm Ornstein, Congressional scholars who have advocated for succession reform for decades. Reb Brownell, another commissioner, continues to research fine-grained aspects of the legal framework for continuity.
The existing system can’t rapidly reconstitute a functioning Congress. Under the Constitution, Members of the House can be replaced only by a general election, which takes time to organize. Senators can be replaced by their state’s governor, at least temporarily, in all but five states, which enables the Senate to quickly get back to work. But a Congress with a Senate and no House can hardly respond to the needs of a country under attack or in turmoil. Proposals for a Constitutional amendment have gone nowhere. An attempted work-around in House rules to allow a smaller quorum is problematic, and legislation to accelerate special elections did not shorten the time enough.
Presidential succession, too, becomes perilous if both the president and vice president are killed or disabled. Under the current system, there’s no guarantee that the Speaker and Senate president pro tempore will be from the same party as the president – creating a potential political tinderbox. Another obstacle would come if the president is dead and the vice president – next in line – is alive but too incapacitated to function, blocking a replacement from further down the line of succession.
The order of Presidential succession can and has been established by statute, without a Constitutional amendment, three times. It’s time to change it again.
Article II, Section I of the Constitution gives Congress authority to decide the line of succession if both the president and vice president are unable to serve. The first Congress couldn’t agree, but eventually the second Congress passed the Presidential Succession Act of 1792. A fault line emerged during debate that has been fought over ever since: Should legislators be in the line of succession or not? James Madison argued for Cabinet-only succession. But that would have put Thomas Jefferson, Secretary of State, at the front of the queue and his enemies in Congress refused to do that.
The order of Presidential succession can and has been established by statute, without a Constitutional amendment, three times. It’s time to change it again.
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.