As the Presidential Election of 2020 draws closer, we hear more and more talk of how the President might hang on to the office beyond January 20th, 2021 even if he loses the election. President Trump has actually said to reporters that he might not accept the results of the election. Those reporters and other talking heads have pushed the topic around in a continuing effort to research options that might be employed by the President to maintain his grip on the ultimate political power further into the future. Let’s have a look.
When the Founding Fathers sat down to write the Articles of Confederation there was no provision for an executive so there was no need to handle a lapse of incumbency in an executive office. When the Articles of Confederation proved to be inadequate for their intended purpose, the Constitutional Convention was called to order and the search for “a more perfect union” was begun. When the Founding Fathers completed their work on September 17th, 1787, the product of their efforts was offered to the various States for their acceptance and ratification. The Constitution required that nine of the thirteen States ratify the new provisions before they were considered to be official and that milestone was achieved when New Hampshire ratified the document on June 21st, 1788. March 4th, 1789 was the date chosen for the transition from the Articles of Confederation to the Constitution as the primary element of our governance system. Virginia and New York would both ratify the Constitution prior to that date, but North Carolina and Rhode Island held off until after that date. Rhode Island was to be the last State to ratify the new Constitution and their endorsement became effective on May 29th, 1790.
March 4th, 1789 represents the Constitutional starting line in our nation’s history. It took until April 30th before the first President was administered the oath of office. The term of his office was determined by Article II, Section 1, Clauses 1 through 6. Clause (1) tells us that “He shall hold his office during the Term of four years.” Clause (2) tells us how he will be elected and includes information about the Electoral College which is continued in Clause (3). Clause (4) gives Congress some work to determine the dates and times of future elections. Clause (5) provides us the qualifications for the President and Vice President and, finally, Clause (6) gives us the first look at how we are supposed to deal with an untimely vacancy of the office of President.
We normally think about succession as a process for filling an unintended vacancy, but the transition of power following an election is also a succession. Our republican democracy has demonstrated to the world that Presidential power can be transitioned peacefully – it is one of our hallmarks. This effort is attempting to cast light on how we handle unintended vacancies in the office of President.
So, turning back to 1789, as the new government under our Constitution was getting started, if the President was somehow unable to fulfill his responsibilities the Vice President would take up the office. If the office of President again became vacant for some reason and there was no Vice President, it was up to the Congress to pass legislation to deal with the situation. Clearly, Congress still had work to do.
Congress passed the Presidential Succession Act of 1792 on March 1st, 1792. The Act spent its first eight sections on the logistics of the new Electoral College filling in the necessary dates and times for the coming election. Section 9 addressed the procedures in the event of an untimely vacancy in the office of the President. March 1st, 1792 would have been one year into the second Congress. The end of 1792 would be the time of the election of the President to hold office for the next four years.
With the passage of these provisions of law, the President Pro Tempore of the Senate and then the Speaker of the House of Representatives were established in the line of succession behind the elected President and Vice President. The debate on these new provisions was not harmonious. Personalities crept into the debate as did the interests of the fledgling political factions and the most agreeable part of the outcome would be the provision that if the President Pro Tempore of the Senate or any other officer should be called upon to take up the office of the President of the United States, that person would hold such authority as an Acting President until such time as a new President could be elected. Remember, it was 1792 and our Constitutional Government was still less than four years old.
Factions, a.k.a. political parties, had formed prior to the Presidential Election of 1796 and they complicated the process of our Electoral College. John Adams was the chosen President and he was a Federalist. Thomas Jefferson was to become the new Vice President and he was a Democratic-republican. These two parties were capable of some serious dysfunction. The Presidential Election of 1800 would further define the inadequacies of our Electoral College. Thomas Jefferson and Aaron Burr were both the recipients of seventy three votes to become President. Aaron Burr was also chosen to be the Vice President. The House of Representatives eventually settled on Thomas Jefferson as the new President, but not before the need for some serious changes to the applicable Constitutional provisions were identified. The 12th Amendment was the Congressional solution to the problem and it was passed by Congress on December 9th, 1803. The 12th Amendment was ratified on June 15, 1804 and that ratification corrected the deficiencies identified at the time.
Congressional attentions were directed towards other matters until our 9th President; William Henry Harrison, fell ill just days after his inauguration on March 4th, 1841 and died after just thirty one days in office. Vice President John Tyler was sworn into office on April 4th, 1841 and with his swearing in came a controversy over whether or not he was President or Acting President. Eventually, he was recognized as President, but not everyone was in agreement.
Forty years later, on September 19th, 1881, President James Garfield was assassinated and Vice President Chester A. Arthur was sworn in as President leaving the office of Vice President vacant. At the same time, the offices President Pro Tempore of the Senate and that of the Speaker of the House of Representatives were also vacant. We can easily see that this situation leaves no one in the order of Presidential succession. The situation was repeated a few years later when, on November 25th, 1885, Vice President Thomas A. Hendricks died while in office and the offices of President Pro Tempore of the Senate and that of the Speaker of the House of Representatives were again vacant. Once again the need for some form of legislation was undeniable and the Presidential Succession Act of 1886 was the outcome.
The Presidential Succession Act of 1886 removed the provisions then in the law regarding succession of the President Pro Tempore of the Senate and the Speaker of the House of Representatives and replaced them with the Secretary of State; the Secretary of the Treasury; the Secretary of War; the Attorney-General; the Postmaster-General; the Secretary of the Navy; and the Secretary of the Interior in that order. The new provisions also contained language requiring any successor to meet certain qualifications for holding the office. This new longer list was thought to be adequate for all circumstances.
Allow me to remind you of the early provisions on this matter. There were no dates for the provisions of the Constitution to be carried out. When we think about it, this had to be the way things got done because no one knew when the Constitution would be ratified and become the central law of the land. The Confederation Congress took up the matter in debate and during September the date of March 4th, 1789 was chosen to be the transition to the new Constitution, but they did not establish dates for the future elections of Presidents and Vice Presidents.
According to the Wikipedia Website Election Day (United States):
“By 1792, federal law permitted each state to choose Presidential electors any time within a 34-day period before the first Wednesday in December. A November election was convenient because the harvest would have been completed but the most severe winter weather, impeding transportation, would not yet have arrived, while the new election results also would roughly conform to a new year. Originally, states varied considerably in the method of choosing electors. Gradually, states converged on selection by some form of popular vote.
“Development of the Morse electric telegraph, funded by Congress in 1843 and successfully tested in 1844, was a technological change that clearly augured an imminent future of instant communication nationwide. To prevent information from one state from influencing Presidential electoral outcomes in another, Congress responded in 1845 by mandating a uniform national date for choosing Presidential electors. Congress chose the first Tuesday after the first Monday in November to harmonize current electoral practice with the existing 34-day window in federal law, as the span between Election Day and the first Wednesday in December is always 29 days. The effect is to constrain Election Day to the week between November 2 and November 8 inclusive. Beginning with Presidential elections, gradually all states brought nearly all elections into conformity with this date.”
It was January 23rd, 1845 and the 28th Constitutional Congress was in session. John Tyler, our 10th President was in office having succeeded to the office upon the death of President William Henry Harrison.
At this point we should take note of the time between the States electing their electors in early November, the electoral votes being transmitted to Congress in early December and then the new Congress and President being sworn into office on March 4th of the next year. This is known as the “lame duck” period and during this period the outgoing office holder might be inclined to conduct themselves in ways that are not to the benefit of American Citizens. We are not talking about some nefarious behavior at this point in our history. Rather, in the case of the election of Abraham Lincoln our 16th President when the country was falling apart as Southern States were seceding from the Union and again in 1933 as President Franklin Delano Roosevelt waited to be sworn into office as our 32nd President while the Great Depression raged, the incumbents were reluctant to take actions that could be detrimental and the elected officials could not take actions because they were not officially in office yet.
An effort was needed to minimize the duration of the “lame duck” period and that effort would become the 20th Amendment to the United States Constitution. The proposed amendment was passed by our 72nd Congress on March 2nd, 1932 pretty much right in the middle of two year period of that Congress. It would seem that there was little controversy surrounding this amendment because it was ratified just nine months later on January 23rd, 1933.
Section 1 offers precise and unambiguous language about when the terms of President, Vice President, Senators and Representatives end. It states, “The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January.” Once the provisions of the 20th Amendment were officially established the end of the terms of office of federally elected office holders was a clear matter of law.
At this point in our political history we learn that benevolence in office actually can exist. In 1945 and two months after the death of President Franklin Delano Roosevelt, President Harry S. Truman is said to have conveyed his belief to Congress that a President should not have the power to appoint to office “the person who would be my immediate successor in the event of my own death or inability to act,” and the presidency should, whenever possible, “be filled by an elective officer.” The 79th Congress acted and the result of their work was the Presidential Succession Act of 1947.
The Act restores the Speaker of the House and the President Pro Tempore of the Senate to the line of succession behind the Vice President and ahead of the Cabinet members. President Truman signed the Act into law on July 18th, 1947. At the time of his signing the Act into law, the Vice President’s office was vacant and there was no provision for filling the vacancy prior to the next Presidential Election.
One thing we need to consider is that if the office of President is vacant as a result of death or resignation, the Vice President is sworn in as the President of the United States. Should the President be unable to fulfill the responsibilities of the office for some other reason, the Vice President would be sworn in as the Acting President until such time as the President was once again able to meet the demands of the office. This situation is easily recognized when a President is required to undergo a general anesthetic for some reason.
The ambiguities in Article II, Section 1, Clause 6 of the Constitution regarding death, resignation, removal, or disability of the president created difficulties several times during our history. There was the death in office of President William Henry Harrison. President Woodrow Wilson suffered a stroke. President Abraham Lincoln was assassinated as were President James Garfield, William McKinley and John F. Kennedy. Before the late 1960s the office of Vice President had unexpectedly become vacant no less than sixteen times.
President Eisenhower experienced some health issues during his term in office and Vice President Nixon filled in as acting President. For some reason, there was debate about what to do if the President thought he was competent to resume the duties of the office and other competent persons did not agree with his assessment. Could the President be involuntarily kept out of office?
The need was becoming clear that the potential for confusion was greater than could be ignored and the 25th Amendment was the result. Section 4 of the 25th Amendment addresses that situation as follows: “Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.”
The 25th Amendment was passed by Congress July 6th, 1965 and was ratified on February 10th, 1967. Since that time almost every President of these United States has been the target of an assassination attempt. Our current laws regarding Presidential Succession can be summarized as follows: In the event of an untimely vacancy of the Presidency, the Vice President, the Speaker of the House, the President Pro Tempore of the Senate and then various Cabinet level officers who have been confirmed to their office by the Senate and who are otherwise qualified to be our President will ascend to the office.
But, we shouldn’t leave this conversation without asking ourselves an important question. Why are we left to research this matter for ourselves? Why isn’t the media telling us about these provisions? Why is the President making insinuations that suggest some circumstance could come to pass that would leave him in office beyond January 20th, 2021 at 12 noon? The truth is that at 12noon on January 20th, 2021, President Trump will cease to be our President unless he is certified to be the winner of our Presidential Election of 2020. At that precise moment of time and date the new President Elect will become our President having been officially sworn into office. If, for whatever reason, we do not have a clear President Elect, the Vice President Elect will be sworn in as Acting President until the President Elect difficulties are resolved. If the Vice President Elect is unable to take up the office as Acting President, the Speaker of the House will be sworn in as the Acting President and so on.
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