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

Posted on January 10, 2013

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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?