Does The US Presidential Chain of Succession Have A Missing Link?

There are two places in our constitution that explain what happens when a president can not fulfill his or her duties” Article II of the original constitution and in the 25th Amendment to the constitution.

Article II Section 1 states in paragraph six:

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. (Bold Added)

The 25th Amendment reiterates in Section 1 that if the president can not serve, the vice president becomes president. Section 2 talks about how to fill a vacancy in the office of the vice president.  Section 3 provides for the vice president to become acting president when the president declares him or herself unable to carry out their duties. And, finally in Section 4 it talks about what happens if the vice president and the majority of the Executive Branch officers declare the president to be unable to carry out the duties of the office of the president. So, where is the line of succession?

The part of the quote above that is in bold allows for congress to pass a law on who would succeed to the presidency if neither the president or vice president were able to serve. Congress did pass such a law. Currently that law exists as 3 USC 19, a section of the U.S. Code. At this time, the line of succession after the vice president is seventeen in number starting with the Speaker of the House and ending with the Secretary of Homeland Security.

It would seem then that the United States has its bases well covered. But, is that true? In the title of this post, I ask if there is a link missing in our chain of succession. What possible link could be missing? My concern is: what if there is no president for whom the vice president could succeed? Does that sound crazy? How can there not be a president for a vice president to succeed? To answer that question, you need to first answer this question. When does a president-elect become the President of the United States? The last paragraph of Article II Section 1 of our constitution reads as follows:

Before he enter on the execution of his office, he shall take the following oath or affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

I am no lawyer, but I take that language to mean that a president-elect doesn’t become President until or unless he/she takes the oath. So, what happens if a president-elect is incapacitated or dies before taking the oath of office? I am concerned about this because that is exactly what has happened today in Venezuela.

The third term of Hugo Chavez ends today. He won a fourth term this past October. Because he is incapacitated ( or dead), he will not be able to take the oath of office for his fourth term. The Venezuelan constitution is very clear on what is to happen in the case that a president-elect is unable to take the oath of office. It says that the president of the National Assembly will assume the Office of the President and call new elections within thirty days. But, this is Venezuela and The Powers That Be here have even less respect for the constitution than the TPTB in the United States. So, here the constitution will not be followed.

Unlike the Venezuelan constitution, neither Article II Section 1 or the 25th Amendment have any language to tell us what to do if a president-elect is unable to take the Oath of office. The language of our constitution assumes that the Office of the President is vacant because an existing president was either removed from office, resigned from office, died. or has been incapacitated. But, if a president-elect, for whatever reason, does not take the oath of office, the Office of the President would be vacant but not for any of the reasons listed.

Maybe I am tangled up in semantics. It would be nice if Dan Miller of the DanMillerIn Panama blog or Ms. Huldah of Publius-Huldah blog, who are both lawyers, could come by today and help me out with this.

Am I worried over nothing? You tell me.

Well, now you know what I’m thinking. What are your thoughts?

22 thoughts on “Does The US Presidential Chain of Succession Have A Missing Link?

  1. I believe, and I could be wrong (wouldn’t be the first time) if the President-elect is incapacitated or unable to take office the vice president elect does.

    But just realized that I’m wrong more than I’m right :)

  2. You would think that since the VP had been reelected in the same process that the process would be the same as if he died after taking the oath! The oath is not what makes him the Pres., it is just the final step.

  3. I’m thinking “inability” would cover failure to take the oath of office, because if if the president doesn’t take the oath then legally he’s unable to assume the duties of the office.

    If you’re referring to Obama, if he and his cronies who cover for him weren’t wiping their rears with the Constitution, it would be painfully obvious that even if Obama does take the oath of office he’s NOT eligible to hold the office because he was (even if he was born in Hawaii, which I doubt) born with dual citizenship because his father was a British subject at the time of Obama’s birth.

    I would also add that his election “victory” was a direct result of voter fraud as well, and if that issue were to be investigated, even though B.O. was never technically eligible to hold the office of president because he is not a natural born citizen, he wasn’t elected legitimately either. A lot of dead people, non-citizens and multiple voters (wink-wink) as well as some selective tampering with the machinery bought us another four years of B.O.- unless Congress grows a pair and throws the impostor out.

    1. I’m probably wrong, but my reading is that if the president-elect doesn’t take the oath for whatever reason he never becomes president. So, how could a vice president replace a president that doesn’t exist?

  4. Fascinating.

    No oath; no president; no legally defined succession should the President-elect remain alive, healthy, capable and does not resign; nor legally removed from office by Congress.

    Another nuance to the U.S. Constitution… when is the oath taken?

    Suppose…
    President Obama is so mad at Republicans that he says he will refuse to take the oath until they agree to abolish the debt ceiling limit? What then?

    Nothing in the U.S. Constitution defines the date the oath must be taken. January 20th is only a recent tradition since Eisenhower. Before that, from John Adams through FDR – 148 years – most presidents took the oath on March 4th.

    If Obama decided to go with the old tradition then the “X Date”, the day the federal government begins defaulting its debts, will probably have passed by then.

    President Obama would still remain President after January 20th. Heck, George Washington didn’t take the oath until April 30th.

    A Chavez situation in the United States would probably be treated the same way as is done now when a U.S. President goes into surgery.

    He’d remain President until he recovered and took the oath. Or, in the case of an indefinite coma or long-term refusal to take the oath, declared incapacitated by Congress. Then normal succession rules apply.

    1. I believe that the law I linked on succession provides that one prsident’s term end at noon on January 20 (21) and the presidents term begins on that day as soon as he takes the oath. If he doesn’t take the oath, for whatever reason, he doesn’t become President. See the comment by Dan Miller.

      1. Please be so kind as to tell me where in the Constitution or any other legally binding document that January 20th at noon is established as the date the oath must be taken.

      2. I set out to find the answer to your question and I found a Wikipedi reference to the Twentieth Amendment. Here is what the Twentieth Amendment says:

        Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January

        The Twentieth Amendment tells us much more:

        Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

        So, this answers my original question. If a president elect dies the beginning of his term, the vice president elect becomes president. You posed the question: what if the president elect is alive but, for whatever reason doesn’t take the oath of office? Dan Miller and whoever wrote the piece II quted from Wikipedia agre that this languge from Article II Section 1

        Before he enter on the execution of his office, he shall take the following oath or affirmation:–”I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

        means that a president elect can not execute the powers of the presidency without first taking the oath. So, then my reading of the Tweentieth Amendment is that the president elect, by virtue of not taking the oath of office, is not qualified and, therefore, the vice president elect would act as president until a president elect is qualified, which it seems could, in the case of a disabled president elect, mean there would have to be new elections.

  5. Jim

    Thanks (I guess) for making me think about it.

    It seems pretty straight-forward if a sitting President dies or becomes incapacitated with a significant portion of his term in office remaining. However, that wasn’t the question.

    There are several permutations. Here are three:

    1. Assume that the President dies shortly before the end of his second (and last permissible) term. The normal line of succession would be followed, there would be an acting President briefly and then, presumably, the new President and VP Elect would be sworn in as and when usual.

    2. However, assume that the President dies shortly before inauguration for his second and last term. Then, his VP or other successor designated pursuant to 3 U.S.C. Sec 19 would take over for the short remainder of the deceased President’s first term. What happens then? Who gets to be the President at the end of that short period? Beats me. In such circumstances there would be no living President Elect to assume office.

    Probably, there would have to be new nominations, campaigns and elections, a process that can take well over a year during which there would be no sitting President to sign or veto bills passed by the Congress or to fulfill other presidential duties prescribed by Article II of the Constitution. Here’s a minor twist:

    pocket veto – The Constitution grants the president 10 days to review a measure passed by the Congress. If the president has not signed the bill after 10 days, it becomes law without his signature. However, if Congress adjourns during the 10-day period, the bill does not become law.

    That’s probably only a minor problem since

    Congress can adjourn and designate an agent to receive veto messages and other communications so that a pocket veto doesn’t happen, an action Congresses have taken routinely for decades.

    3. As a small twist on #2, assume that the President Elect dies shortly before inauguration for his first term. Who would then be inaugurated as the President? Beats me, for the same reason, but the scenario suggested in #2 would probably have to be followed.

    1. Dan, thank you for giving us a legal angle. I really appreciate your taking the time to think it through. Could Congress fix this problem by adding language to the succession law or would it require a constitutional amendment?

      1. Jim, I suspect that a constitutional amendment would be necessary to deal with the situations in #s 2 and 3 since I am unaware of any provision in the Constitution allowing the Congress to authorize itself to appoint a new President or to establish the parameters for the Electoral College or anyone else to do so.

        The interim period — probably a year or more — between the end of one presidency and the beginning of a new presidency would also have to be dealt with. A law enacted by the Congress and allowed to go into effect because not vetoed (there being no President to veto it) probably wouldn’t cut it. Possibly, a constitutional amendment authorizing the old President, or in the event of his death or disability the Vice President or other designated successor under 3 U.S.C. Sec 19 (probably the statutory provision should be embedded in the constitutional amendment), to continue in office until a new President could be elected would work.

    2. In #2 and #3…
      Why wouldn’t the incoming VP-elect be sworn in normally as Vice President and then, through succession, go on to immediately be sworn in as President?

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