The Executive Branch's Longstanding Embrace of Legislative Succession to the Presidency

Abstract

Since adoption of the 1947 presidential succession act, there has been academic debate over the constitutionality of inclusion of the Speaker and President pro tempore in the line of succession to the presidency. While the scholarly community has been divided on the issue, the executive branch has publicly embraced legislative succession with almost complete uniformity. These signs of approval include explicit or implicit public and private statements by 1) ten presidents (Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, George W. Bush, Trump); 2) three vice presidents (Nixon, Quayle, Cheney); 3) the Justice Department from eight administrations (Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Reagan, George H.W. Bush); 4) the Secret Service of five administrations (Truman, Kennedy, Johnson, Nixon, George H.W. Bush); 5) the White House emergency coordinator or FEMA of three administrations (Nixon, Reagan, George W. Bush); 6) White House counsels from seven administrations (Johnson, Nixon, Reagan, George H.W. Bush, Clinton and George W. Bush); 7) vice presidential counsels from two administrations (Carter, Cheney); 8) senior White House aides of six administrations (Kennedy, Nixon, Ford, Carter, Reagan, George W. Bush); 9) secretaries of state from four administrations (Nixon, George H.W. Bush, George W. Bush, Obama); and 10) the State Department’s very own website. This article discusses the executive branch’s longstanding support for legislative succession to the presidency. These repeated confirmations of the constitutionality of legislative succession would likely pose serious legal and political hurdles to any future legal challenge to the Speaker or President pro tempore becoming Acting President.