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Homeland Security

Christopher J. Dodd

Joint Hearing of
Committee on Rules and Administration and
Committee on the Judiciary
September 16, 2003

Chairman Lott and chairman Cornyn: I commend you both for calling this joint hearing to address the issue of presidential succession.

The events of 9-11 were a not-so-subtle reminder of the potential scenarios that could call into question the procedures for establishing presidential succession. Now is the time to be considering those questions - before a national catastrophe occurs and we are forced to either act in haste, or in response to a constitutional crisis.

Article II, section 1 of the Constitution, and subsequent amendments, establishes the foundation for presidential succession and makes clear the framers preference that the Vice President should succeed to a vacancy in the presidency. In their wisdom, the framers left to Congress the question of how to settle a double vacancy, as occurs if the presidency and vice presidency are both left vacant.

The Congress did not hesitate to fill this void and passed the first presidential succession act in 1792. It is noteworthy that in the 211-year history since that act was adopted, Congress has only twice substantially revised it, in both cases in response to circumstances related to the death of a sitting President.

The history of the succession act, and its progeny, is a reflection of the 200-plus year debate on the subject and the dilemma Congress faces when it considers change only in response to crisis. This history is also revealing in its consideration of the same issues that our witnesses will raise today. If we are to avoid the mistakes of the past, we need only look to our history.

The 1792 Act provided that in the case of a double vacancy, the order of succession would fall to the President pro tempore of the Senate and then the Speaker of the House. But the term of either of these legislative "officers" was to be temporary only, since the Act provided for a special election to fill a presidential vacancy, unless the vacancy occurred in the last full year of the term.

The placement of legislative "officers" in the line of succession was not universally supported, and its critics included such constitutional authorities as James Madison. Representative Jonathan Sturges of Connecticut observed at the time that if the Speaker were in the line of succession, there would be "caballing" and "electioneering" in the choice of Speaker. However, the Act remained substantially unchanged for nearly 100 years.

The Succession Act of 1886 followed the assassination of President James Garfield in 1881 and his incapacitation for a period of 79 days, and the untimely death of Vice President Thomas Andrew Hendricks in 1885, less than 9 months after his inauguration.

Ironically, in both circumstances, both the office of the President pro tempore, then third in line to the presidency, and the office of the Speaker, then fourth in line, were vacant at the time. Similarly, in both cases there was a potential that at least the position of President pro tempore of the Senate would be filled by a member of the opposing party, thereby potentially leading to a switch in party should a double vacancy arise.

To ensure the line of succession and reduce the risk that such succession would result in a change in party in the White House, Congress passed the Succession Act of 1886 which eliminated the President pro tempore and the Speaker from the line of succession and provided for succession through cabinet officers. The 1886 act also eliminated the requirement for a special election. That Act governed succession for more than 60 years.

It was yet another death of a sitting president, that of Franklin D. Roosevelt on April 12, 1945, less than 3 months into his fourth term, and the ascendancy to the presidency of Harry Truman, that precipitated the latest revisions in presidential succession - the Succession Act of 1947.

President Truman found himself ill-prepared for the vacancy he filled, noting in his memoirs that "under the present system, a vice-president cannot equip himself to become president merely by virtue of being second in rank. The voters.....should select him as a spare chief executive."

With the ensuing vacancy in the vice presidency, Truman was called upon to nominate his successor - a task he did not relish. In a special message to Congress on June 19, 1945, President Truman declared that he "did not believe that in a democracy this power should rest with the chief executive."

He recommended that Congress restore an elective officer to the line of succession - in this case, the Speaker, who Truman argued had a more recent mandate, having been elected every two years as opposed to six in the case of the President pro tempore of the Senate. Truman also recommended that the requirement for a special election be restored.

In response, Congress enacted the Succession Act of 1947 which provides for presidential succession in the case of a double vacancy, but does not require that a special election be held.

Many of the issues that faced the second Congress in 1792, and the forty-ninth Congress in 1886, and the eightieth Congress in 1947, are before us again today.

But today, while it is both fortunate and opportune that Congress is not faced with an immediate crisis, we are faced with one of even greater magnitude than imagined by previous Congresses - the potential elimination of the entire line of succession by one terrorist act. It is prudent that we act now to remove any constitutional questions or deficiencies in the presidential succession procedures.

The principles that must guide our deliberations are the need to establish certainty, clarity, and the constitutionality of succession. The legitimacy of our democracy hangs in the balance of what we do and nowhere is the need for a non-partisan, bipartisan approach more imperative than here.

I look forward to the suggestions of our distinguished panelists and the opportunity to craft such a bipartisan response with my colleagues.

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