America's first congress debated it in the 1790s, and it's been debated about ever since. Who should step into the president's shoes if the offices of President and Vice President are simultaneously vacant? Today we talk about the many different Presidential Acts of Succession that we've had in the US, as well as designated survivors, the "football," and the recurring question of the constitutionality of such acts.
Click here to listen to our episode on the Executive Branch, should you want to learn the mnemonic "See That Dog Jump In A Circle, Leave Her House To Entertain Educated Veteran's Homes."]
Transcript
Archival: We defend the physical capital of the United States with these thick Jersey barriers. But obviously the statutes to provide for continuity are not nearly as solid. There should not be a scenario that any of the professors that come here before you can put forward where we don't know who is president and who isn't.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we are talking about the [00:00:30] order of presidential succession. We're going to talk about the current order and then how it's changed since the founding, as well as some interesting moments in presidential succession history. We're also going to talk a little about designated survivors. And finally, the arguments about whether our order of succession is constitutional or not.
Hannah McCarthy: All right, let's go. Okay, Nick. The order of presidential succession, or rather the presidential [00:01:00] line of succession, lays out who becomes president if the current president is dead, impeached, has resigned, or is otherwise incapable of holding the job. And we all know that's the vice president, right? Like if Joe Biden died in a plane crash, Kamala Harris would become president.
Nick Capodice: Right. And this sort of thing has happened nine times in US history. Eight deaths, one resignation. But it's that next step which brings this topic up in the news cycle. Every time there's uncertainty [00:01:30] about who is running the House of Representatives. Well, after.
Archival: More than two weeks without a speaker, the plan to keep temporary temporary Speaker Patrick Henry through the end of the year appears to be a no go. That was the plan initially, but it was struck down. What is all the drama mean for the line of succession then, when it comes to the presidency?
Nick Capodice: Now, Hannah, let me start here by saying that so far this has never, never actually come up. We've never had to go farther than vice president to fill a [00:02:00] vacant presidency.
Hannah McCarthy: All right. Noted.
Nick Capodice: That said, under the most current presidential succession Act, which is from 1947, by the way, in the event of both the president and the vice president hypothetically dying in a plane crash, the next in line is the speaker of the House.
Hannah McCarthy: Now, real quick, did the president and the vice president ever fly in the same plane?
Nick Capodice: They don't. And this is not a law, but rather an informal precedent referred to as the Johnson rule, named after Vice President and then President [00:02:30] Lyndon Johnson. So the president flies on Air Force One and the veep on Air Force Two. And by the way, Hannah, did you know that Air Force One is not actually a plane?
Hannah McCarthy: Excuse me?
Nick Capodice: No, it's not even like a fleet of presidential planes. Any plane, any Air Force plane that the president is on uses the call sign Air Force One. And while we're doling out the trivia, LBJ was reportedly so finicky about the temperature in the cabin [00:03:00] of Air Force Two when he was vice president, that the flight crew installed a fake thermostat that didn't do anything whatsoever right by his seat, and he never complained again.
Hannah McCarthy: I'm fairly certain that my father did the same thing in my house growing up.
Nick Capodice: But back to the order of succession. I don't want to dwell on the grisly possibilities of how exactly this can happen. But if the president, Vice president, and speaker of the House are all gone at the same time, next [00:03:30] in line is the president pro tempore of the Senate, which is the person in the majority party of the Senate who has served the longest in the Senate. Now, currently, that is Patty Murray. She's the Democratic senator from Washington state. Okay.
Hannah McCarthy: And who's after Senator Murray?
Nick Capodice: Well, that's where things get a little murky. Hannah, do you remember the little mnemonic device from our episode on the executive branch?
Hannah McCarthy: Oh, this is the one that's like. See that dog jump in a circle?
Nick Capodice: Yeah. That one. I'm going to put a link in the show notes to the episode [00:04:00] on that for more specificity. But the rest of the line of succession consists of the secretaries of each of the 16 departments in the cabinet, in the order of creation of the department. The mnemonic we're referencing here is see that dog jump in a circle, leave her house to entertain educated veterans homes. That's secretaries of state, Treasury, defense, justice, the attorney general, interior, agriculture. Et cetera. I'm not going to do the whole spiel. Just check the episode if you want to learn it. The most [00:04:30] recent tweak to the Presidential Succession Act was in 2006, when they added the Department of Homeland Security.
Hannah McCarthy: Speaking of the Department of Homeland Security, that's Alejandro Mayorkas, right?
Nick Capodice: It is.
Hannah McCarthy: Yes. I ask because the Constitution requires that anyone stepping into the office of president must be at least 35, have been a resident of the US for 14 years, and must be a natural born citizen of the United States, which Mayorkas is not. He was born in Cuba.
Nick Capodice: Yeah, you're absolutely correct. As of this recording [00:05:00] November 2023, Mayorkas is one of two cabinet members who are excluded from the line of succession. The other is Jennifer Granholm, Canadian born Secretary of Energy. And we got one more snarl. The Presidential Succession Act requires the aforesaid officers to be appointed under the advice and consent of the Senate. Now Julie Su, Wisconsin born Secretary of Labor, she was appointed Deputy Secretary of Labor with the advice and consent of the Senate. But then [00:05:30] she moved up to acting Secretary when the former secretary resigned. So that is in question. And I do not know the answer of whether she's eligible or not.
Hannah McCarthy: All right, Nick, I'm ready for that oft used clatter of carriage on a cobbled street. Take me back to when this all started.
Nick Capodice: Your wish is my command, Hannah.
Nick Capodice: 1790 Federal Hall in New York.
Nick Capodice: With our first Congress debated this issue for a while. You see article [00:06:00] two. Section one of the Constitution lays out the succession. Hannah, can you read this for me?
Hannah McCarthy: Yeah. Of course, in the 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. That's a mouthful. But it makes sense. The veep fills the job.
Nick Capodice: Yeah. And even that, though, comes into question pretty quickly as I'm going to get into in a little bit. But first I'm going to finish with [00:06:30] the other part. Quote. 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?
Hannah McCarthy: In other words, Congress is in charge of deciding the order. Is that what that's saying?
Nick Capodice: Yes. And our first Congress could not agree. Now, some suggested speaker of the House [00:07:00] come next like we have now. But at the time that was Thomas Jefferson, and members of the Federalist Party did not like that because Jefferson was leading the opposition party. So Chief Justice of the Supreme Court was floated. President of the Senate, Pro tem was floated. But it was not until 1792 that Congress came to an agreement the first Presidential Succession Act, which was signed by George Washington.
Hannah McCarthy: What did they end up choosing as the next in line after the vice president?
Nick Capodice: They chose president pro tem [00:07:30] of the Senate, and the speaker of the House came right after.
Hannah McCarthy: So that was the reverse of what we have right now. Right. And no cabinet folk at all?
Nick Capodice: Nope. Not at all. And just to reiterate what I said earlier, this never came up. There was never a time that the presidency and vice presidency were vacant simultaneously. But what did come up was a whole lot of disagreement. The very first time we had a succession 1841. William [00:08:00] Henry Harrison. Old Tippecanoe dies of pneumonia a mere 31 days after his inauguration, his veep, John Tyler. So here's the question that arose. Hannah. Is Tyler assuming the powers of the presidency, or does he actually become the president? Those are two different things. Now, according to John Tyler, it was very much the latter. He took the presidential oath. He vetoed bills that came from his own party, the [00:08:30] Whigs, who not so secretly referred to Tyler as, quote, his accidency.
Hannah McCarthy: Oh yeah. I remember reading somewhere that Tyler went so far as to return letters addressed to Vice President John Tyler completely unopened.
Nick Capodice: Yeah, that was his style. But regardless of the general disdain members of Congress had for Tyler's ascendance to the presidency, a precedent had been set. When presidents die, the vice president becomes [00:09:00] the president. Quick last Tyler tidbit here. He didn't have a vice president ever. And in 1844, a gun exploded while he was on a boat in the Potomac. The USS Princeton, six people died. And had he been one of them, we would have had our first ever third in line president who was president of the Senate Pro Tem, Willie Magnum.
Hannah McCarthy: Were there any other close calls like this where the VP became president? No new VP was elected. And then that new president nearly died. [00:09:30]
Nick Capodice: Yeah, two big ones in this time period. And they kind of came one after the other. As you know, Abraham Lincoln's assassination was part of a bigger plot. The plan was also to assassinate his vice president, Andrew Johnson, as well as his secretary of state, William Henry Seward. Those last two didn't succeed, so we didn't have to get into it. But then Andrew Johnson, he was impeached in 1868, and he was one vote shy of being removed from office. Had he been removed, Senate President Pro Tem Benjamin [00:10:00] Wade would have become president. And then we had kind of a relatively quiet era, succession wise, until Charlie Guiteau shot President James Garfield over a perceived slight.
Archival: My name is Charles Guiteau, My name, I'll never deny.
Nick Capodice: So Garfield died when Congress was not in session. Chester a Arthur became president. There was no veep. There was no speaker of the House. There was no president of the Senate. Pro [00:10:30] tem.
Hannah McCarthy: Is this what finally pushes Congress to revisit the Presidential Succession Act and say, basically, we need something a little better than this?
Nick Capodice: Yeah. And then the next president, Grover Cleveland, his veep died eight months into the term. And Congress was like, we can't have this happen again. And they passed the 1886 Presidential Succession Act. It's the second of the three that we've ever had.
Hannah McCarthy: How was this one different? Did the cabinet finally get involved?
Nick Capodice: Oh, they didn't just get [00:11:00] involved, Hannah. They were it. Speaker of the House is not even on the list in this new act. Neither is president of the Senate pro tem after the vice president. It was the secretary of state and then the Treasury and then all the way down the cabinet line.
Hannah McCarthy: What was their reasoning to change it so drastically?
Nick Capodice: There are a few reasons, mainly that things had been kind of a mess and that there were so many close calls. And also another interesting point. Secretaries of state [00:11:30] were a pretty good pick for next in succession, because they tended to become president a lot of the time. In the 100 ish years before this act was passed, six presidents were former secretaries of state. Okay, Hannah, one more act before we get off the presidential history train. And I'm going to make this one quick. 1947, the act under which we currently operate.
Archival: Over the white House at Washington, the flag flies at half staff as a grief stricken nation mourns the death [00:12:00] of Franklin Delano Roosevelt, president of the United States. Inside, in the historic Cabinet Room, Vice President Harry S Truman takes the oath of office as 32nd president. Administered by Chief Justice.
Nick Capodice: Franklin Delano Roosevelt. Died 82 days into his fourth term. His veep, Harry S Truman, had already set the wheels in motion for a new order of succession. See, he didn't like this cabinet only structure. And he argued it should be [00:12:30] speaker of the House and then president of the Senate pro tem and then the cabinet.
Hannah McCarthy: What was his problem with the cabinet?
Nick Capodice: Well it wasn't a problem necessarily. Like Truman didn't have beef with the cabinet. He just said that it gave the president too much power because think about it, Hannah, cabinet secretaries are appointed by the president, not the speaker of the House. And the president of the Senate are not. They are elected officials. They're chosen by the people. Truman thought it was a stronger check on the presidency. See [00:13:00] to have it this way, the way we have it now, after the vice president. It's the speaker of the House, the people's chamber.
Hannah McCarthy: One thing that stands out to me here is that there have been a lot of times when we had no vice president, which is something I guess we finally got around to addressing when we ratified the 25th amendment.
Nick Capodice: Which, if I'm not mistaken, Hannah, we have not one but two episodes about that is.
Hannah McCarthy: Correct.
Nick Capodice: Okay, now we've got the history of succession. Out of the way. Hannah, I think it's time we talked about absolute [00:13:30] worst case scenario presidential vacancies. And I'm talking about sitting alone in an unspecified location, watching the state of the Union address with an ominous leather bag at your feet. We are going to get into the so called Designated Survivor right after this break.
Hannah McCarthy: But before the break. Are you the kind of person who wants to know more about that gun that exploded on a ship, almost killing John Tyler and throwing us into succession chaos? Or why [00:14:00] Nick likes the theme song to the show, succession so much.
Nick Capodice: That's true. Hannah. It is a perfect theme.
Hannah McCarthy: All right then, you are the kind of person who would like our newsletter extra credit. It comes out every two weeks. It is fun. It is free. And you can sign up at our website civics101podcast.org.
Hannah McCarthy: We're back. We're talking about the line of presidential succession. And, Nick, you were going to take us into some dark [00:14:30] territory.
Nick Capodice: I was Hannah.
Speaker9: Mike, please just tell us what you know.Capital's been attacked. Congress cabinet. Eagle is gone. Sir, you are now the president of the United States.
Nick Capodice: Gosh, that is pretty grim. I'm going to brighten it up with a little cheery music here. Well, actually, I never saw that show. Designated survivor. Did you ever see it?
Hannah McCarthy: I think I might have watched like one [00:15:00] episode of it, but I did not. I didn't stick with it, even if I did.
Nick Capodice: Well for those listeners out there who haven't seen it, the plot of the show Designated Survivor is that the Secretary of Housing, played by Kiefer Sutherland, is the designated survivor. During a state of the Union address, the Capitol is destroyed in an explosion. Everybody dies and he becomes president.
Hannah McCarthy: Nick, when did this practice begin? Having one member in the order of succession skip big events like the state of the Union or an inauguration? [00:15:30]
Nick Capodice: Well, this practice started during the Cold War.
Archival: At the conclusion of World War Two, eight more countries had fallen under the hammer and sickle. And an important part of historic Europe today is under communist domination.
Nick Capodice: It was in this era, this era of duck and cover. This era of fear of nuclear warfare, that we started to have a designated survivor. And it's something we continue to this very day. [00:16:00] And it's not just the president. Hannah, I was surprised to learn the House and the Senate also each have one member skip events like this to maintain the existence of Congress in the event of an utter catastrophe.
Hannah McCarthy: A one person Congress. Okay. How is the designated survivor chosen? Is it just completely random?
Nick Capodice: It's pretty much completely random. It's at the whim of the white House, with the exception of if a department's going to get like a shout out at the state of the Union address, that secretary is probably going to be [00:16:30] there. And for fun. Anyone out there? If you want to see the list of all the former designated survivors, UC Santa Barbara has a list of everyone. Since 1984, secretaries of the departments of the Interior and Agriculture top the charts. Go check it out.
Hannah McCarthy: So where does the designated survivor go?
Nick Capodice: We don't know. We don't know. We have no idea until after the fact. It's different every time. Designated survivors [00:17:00] are usually escorted by members of the military, and the location can vary from like a bunker type facility to a random restaurant. One guy said he was flown to his daughter's apartment in Manhattan.
Hannah McCarthy: That's not so bad.
Nick Capodice: And there's another thing that all designated survivors get the 45 pound leather satchel that is colloquially referred to as the football.
Archival: Mr. president. This is the nuclear football. We'll be with you whenever you leave the white House.
Hannah McCarthy: All right. What is [00:17:30] in the football, exactly?
Nick Capodice: The contents of the football vary among administrations. There's an antenna in there. There's a lot of top, top, top secret information on orchestrating a nuclear attack. There are launch codes, that sort of stuff. There's also a plastic card with an identifying code on it to make sure the person ordering such a nuclear strike is the person authorized to do it. I bring this up because that little card is called the biscuit.
Hannah McCarthy: The biscuit?
Nick Capodice: The biscuit. There's [00:18:00] a lot of stories that go from comical to horrifying, involving the football and the biscuit and losing them, potentially. But I'm not going to get into those.
Hannah McCarthy: All right, to wrap it all up, Nick, you said at the beginning of this episode that when it comes to the current presidential order of succession, there are some disagreements.
Nick Capodice: There are. And these go from arguments about the logistics of it all in the modern era to the very constitutionality of the Presidential Succession Act. [00:18:30] So first off, Hannah, after the attacks of September 11th, 2001, a nonpartisan think tank called the Continuity of Government Commission was created. It was created to explore what would happen if an attack of the magnitude of nine over 11 were made on the Capitol. Jimmy Carter was on it. Gerald Ford was on this commission, as well as myriad academics and political strategists.
Hannah McCarthy: What did they find out? Did they change anything?
Nick Capodice: Well, they found a lot out, [00:19:00] and they tried to change things. They published three reports suggesting changes to the Presidential Succession Act to ensure stability if such a catastrophe happened. They suggested things like removing members of Congress from the line of succession, and including people who did not live in Washington, D.C., in the line of succession. But those reports were ultimately ignored, and the commission was finally dissolved in 2011.
Hannah McCarthy: And as to the constitutionality of it all, that's something I want to know about, [00:19:30] because we've operated under Presidential Succession Act since almost right after our Constitution was ratified. Are there people who think that we've just been doing it wrong this whole time?
Nick Capodice: There are. There is a rather famous paper by two renowned legal scholars and brothers, Vikram and Akhil Amar. It is a 25 page essay from 1995 questioning the Presidential Succession Act, and it focuses on one single word [00:20:00] and that word is officer.
Hannah McCarthy: As in from that chunk of article two that we started with, quote, declaring what officer shall then act as president and such officer shall act accordingly, unquote, etcetera. Yeah.
Nick Capodice: That one. The Amar's argue that in the context of that clause, the word officer extends to members of the executive branch only.
Hannah McCarthy: So under that argument, the speaker of the House is not an officer, [00:20:30] neither is the president pro tempore of the Senate.
Nick Capodice: Which might not seem like a big deal, Hannah, but were there sudden vacancies of the president and vice president at the same time? We have a potential constitutional crisis. Yes, we are under an act right now that says the speaker of the House succeeds to the highest office in the land, but because of the ambiguity of whether that speaker is an officer or not, political opponents of whomever the speaker is could theoretically [00:21:00] put this nation in turmoil. There was another article I read by a legal scholar, Josh Blackman, and he stated that the Amar's theory, quote, if correct, risks throwing the United States and the entire free world into a state of chaos. Bush v Gore would seem tame by comparison. End quote.
Hannah McCarthy: What strikes me about all of this is that the order of succession is not a hard and fast rule. It's like, well, [00:21:30] it's like everything we talk about on this show, it's like church and state, the Second Amendment powers of the president. Those are all things that different Congresses and different administrations have interpreted and reinterpreted since our founding. And like all questions of interpretation, the final arbiter, I mean, it might be one day, Nick, the Supreme Court. Yeah.
Nick Capodice: It might be. And in this instance, Hannah, I think both of us can say unequivocally, we hope the need to interpret [00:22:00] this never arises.
Hannah McCarthy: Yup. I can say that.
Kevin Jackson: Hey, everyone, this is Kevin Jackson. I teach government and AP government at Petaluma High School in Petaluma, California. Right now, we're talking a lot about the 14th amendment, whether [00:22:30] it's the Equal Protection Clause, the Due Process Clause, or selective incorporation. This episode was made by Nick Capodice and Hannah McCarthy. Civics 101 staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Music. In this episode by Kilo Caz, Kevin McCloud, The New Fools, Fabian, Tell Timothy. Infinite 91, Nova, El Flaco Collective, Forever Sunset, Francis Wells, Eric Kilkenny, blue Dot Sessions and Mr. Chris Zabriskie. [00:23:00] Civics 101 is a production of NHPR, New Hampshire Public Radio.