Presidential Succession

[A18]

Discuss.

[Emsworth]

Yes. The relevant provision of the Constitution is Article II, Section 1, Clause 6: "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." Nothing in this clause suggests that legislators may not be included in the line of succession.

However, the legislator must resign from Congress in order to become Acting President. Under Article I, Section 6, Clause 2, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

[True Federalist (진정한 연방 주의자)]

Yes, but it isn't wise.

[A18]

No. "Officer" in context means "officer of the United States," which does not include members of the legislative branch.

Under Article I, Section 6, Clause 2, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

It's funny that you quote that, while saying 'yes' to the poll question. The text makes it clear that a federal legislator may not be an officer of the United States. "Officer of the United States," then, must not include members of the legislative branch.

[Emsworth]

It's funny that you quote that, while saying 'yes' to the poll question. The text makes it clear that a federal legislator may not be an officer of the United States. "Officer of the United States," then, must not include members of the legislative branch.

Of course, I agree that legislators are not officers of the United States. But they are still officers (see Art. I, Sec. 2, Cl. 5, for example).

The original understanding seems to be that "officers" include all federal officials, whether executive, judicial, or legislative. Very soon after the Constitution was adopted, Congress inserted the President pro tempore and the Speaker into the line of succession. Apparently, James Madison objected on grounds similar to yours; however, this is merely the opinion of one man, and does not reflect the general understanding.

[A18]

If a legislative position is an office, then surely one who holds it holds an office under the United States.

EDIT: 'office,' not officer

[○∙◄☻¥tπ[╪AV┼cVê└]

Of course

[J. J.]

Yes.

[ATFFL]

No. "Officer" in context means "officer of the United States," which does not include members of the legislative branch.

Under Article I, Section 6, Clause 2, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

It's funny that you quote that, while saying 'yes' to the poll question. The text makes it clear that a federal legislator may not be an officer of the United States. "Officer of the United States," then, must not include members of the legislative branch.

It seems to me they can be, so long as they lose their membership in the House or Senate.

[A18]

What are you talking about? An officer of the United States can not be a member of the House or Senate. It's obvious, then, that a member of the House or Senate is not an "officer of the United States" within the meaning of the Constitution.

[Jake]

I vote No. Philip's argument is pretty strong here.

[ATFFL]

What are you talking about? An officer of the United States can not be a member of the House or Senate. It's obvious, then, that a member of the House or Senate is not an "officer of the United States" within the meaning of the Constitution.

No, and the provision quoted by Emsworth makes that clear.  Otherwise anyone in Congress would be an officer and would be required to give up their seat in Congress.

Being the President does make one an officer of the United states.  So, to be President, one must give up their seat in the House or Senate.

However, being in the line of succession to the Presidency does not make one an officer of the United States until the line reaches that person and they accept the position.  There is no office of "Third in line to the Presidency" and so forth.  Thus being in the line is not being an officer of the United States and a member of Congress can be in the line with the understanding they will lose their seat if they are ever called on to step up to the executive office.

[A18]

I don't see what that has to do with our conversation.

The point is that only "officers" can be placed in the line of succession.

[Peter]

The question essentially boils down to:

Is it possible to be an Officer of one of the Houses of the United States Congress (see Article I, Section 2, Clause 5 and Section 3, Clause 5) without being an Officer of the United States (Article II, Section 1, Clause 6 and Article I, Section 6, Clause 2). As if to add to the confusion, the Framers also gave us yet another type of officer:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. - Article II, Section 4

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. - Article I, Section 6, Clause 2

Quite what the distinction (if any) is between a "civil Officer[] of the United States" and an "Officer of the United States" is totally unclear. Since it is generally recognised that legislators are not liable to impeachment, they are thusly not "civil Officers"; This view is re-inforced by the fact that the Constitution specifically makes provision for getting rid of naughty legislators in Article I, Section 5, Clause 2, especially in regard of the Senate with the two-thirds requirement being identical. The interpretation that legislators are not civil Officers is yet more re-inforced by the fact that they cannot be appointed to "civil Office<s>", which is contradictory if we were to suppose that the Speakership were a civil Office - it clearly cannot be.

Yet the fact is that the phrase "civil Officer [...]" and "Officer [...]" are used in the same clause no less. No word in the text is worthy of less weight than any other, and thus I must conclude that a civil Officer and an Officer are different things. Given that a civil Officer expressly cannot have a legislator amongst its ranks, then I certainly see constitutional possibility that the Officers might have them amongst their ranks.

In conclusion, I would have to say that it is constitutional.

[A18]

The "civil officer" versus "officer" distinction is not going to get you anywhere.

Article I, Section 6, Clause 2 makes it clear that no officer of the United States may hold a legislative position. It does not use the potentially limiting adjective "civil."

Article II, Section 3 provides that the president shall "Commission all the Officers of the United States." The president certainly does not commission federal legislators.

The only way it can be constitutional is if a federal legislator is an officer, but not an officer of the United States.

It may not be completely unworthy of mention that Article II, Section 2 seems to treat the phrases "officer" and "officer[] of the United States" as synonyms.

[Emsworth]

I think that A18's argument is fairly convincing. It would appear that members of Congress are not considered "officers" of any sort.

It may not be completely unworthy of mention that Article II, Section 2 seems to treat the phrases "officer" and "officer[] of the United States" as synonyms.

But there is a slight difficulty with this position. If "officer" always means "officer of the United States," then it would be unconstitutional for the Speaker to be a member of the House of Representatives. Article I, Section 2 states, "The House of Representatives shall chuse their Speaker and other Officers." This clearly implies that the Speaker is an officer; note the fact that the Constitution refers to "other Officers." But if the Speaker is an officer, he may not serve in the House of Representatives.

[A18]

I suppose I would respond that while in that instance, the officer is clearly an officer of the House as distinguished from an officer of the United States, in other contexts, the word "officer" is most naturally read as meaning officer of the United States.

If it is not so in the Succession Clause, then what kind of "officer" does it refer to? Could Congress specify that the governor of a state is to act as president? While this reading is not entirely absurd, it seems awkward. (Think of the state favoritism and disunity that would result.)

For what it's worth, which may not be much, early versions of the Succession Clause explicitly referred to an "Officer of the United States" to be chosen by the Congress. It was a later style committee that deleted the words "of the United States."

Consider some technical problems that may arise if we read it as the 'yes' votes desire. I am speaker of the House. The president dies while the vice presidency is vacant. I am now called to act as president. But in order to do so, presumably I must resign. At which point, I am no longer speaker of the House, and no longer entitled to act as president.

Let's overlook that, but try another scenario. The president's disability is merely temporary. The vice presidency is vacant. I resign, and become acting president. Later, the president recovers, and I am now out of a job. I am no longer entitled to my House seat (in fact, a successor representative may have already been elected), nor the powers and duties of the president.

A cabinet official, on the other hand, could keep his cabinet post while serving as acting president.

[Emsworth]

Consider some technical problems that may arise if we read it as the 'yes' votes desire. I am speaker of the House. The president dies while the vice presidency is vacant. I am now called to act as president. But in order to do so, presumably I must resign. At which point, I am no longer speaker of the House, and no longer entitled to act as president.

It might be argued that the Speaker does not become President, but merely becomes Acting President. The Constitution says that Congress may "declar[e] what Officer shall then act as President," not "declar[e] what Officer shall then become President." Thus, he would not be required to resign.

This is just a possible solution to the technicality you mention; I would have to agree that the Speaker is not an "officer" within the meaning of the succession clause.

[A18]

Yes, it could be said that the acting president is not an officer of the United States, but merely acting as an officer of the United States. Therefore, the speaker of the House would not have to resign.

But if he is able, then, to continue to exercise both the powers and duties of the presidency, while at the same time utilizing his abilities as a member and speaker of the House, this would severely undercut the separation of powers.

If he is only to act as president, while merely retaining his seat in the House as an official matter, then I suppose this would not be as big a problem.

But in either case, could the acting president not be impeached? The Impeachment Clause speaks only of the "President," not an acting president, just as the Incompatibility Clause speaks only of an "officer of the United States," and not one who is merely acting as an officer of the United States. I suppose to be consistent, either both clauses would have to apply, or neither would.

[Emsworth]

In 1792, Congress passed a law placing the President pro tempore and the Speaker in the line of succession. In case anyone is interested, here is a transcript of part the House debate on the subject:

[December 22, 1791]

Mr. STURGES mentioned several objections to this section, which in his opinion rendered it unconstitutional; he could not find that the Speaker of the House or the President of the Senate pro tem were officers of the Government in the sense contemplated by the Constitution. [...]

Mr. STURGES then moved to strike out the words, "the President of the Senate pro tempore and the Speaker of the House of Representatives."

Mr. GILES stated that the reasons he conceived fully proved the unconstitutionality of the clause. The characters referred to he did not think were officers. If they had been considered as such, they would have been designated in the Constitution [...]

Mr. SEDGWICK [...] was surprised to hear the idea controverted, that the Speaker of the House, or the President of the Senate pro tem, is not an officer. In common parlance he was sure there was no difficulty in the matter.

Mr. GERRY observed, that some gentlemen had said that the Speaker is not an officer; but if he is not an officer, what is he? He then read a clause from the Constitution which says that the House shall choose their Speaker and other officers. [...]

Mr. WILLIAMSON was in favor of the motion for striking out both the characters. He observed, that the extensive construction of the meaning of the word officer, would render it proper to point out any person in the United States, whether connected with the Government or not, as a proper person to fill the vacancy contemplated.

The House later voted 32-22 in favor of an amendment replacing President pro tempore and the Speaker with the Secretary of State. However, the Senate disagreed with this amendment; the House restored the original version by a vote of 31-24.

(Source: Annals of Congress)

[True Federalist (진정한 연방 주의자)]

Article II Section 1 also makes it clear that Senators and Representatives are not Officers under the United States.

“...no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

As for the difference between “civil Officers” in Article II Section 4 and “Officers”, the distinction there is that it doesn’t include military Officers (whose removal would be covered under the power of the Congress to “make Rules for the Government and Regulation of the land and naval Forces” in my opinion, and it doesn’t include legislative or judicial Officers who aren’t be covered under Article II.

Now it is obviously clear that under even the most obtuse of interpretations of tjhe word “Officer” that the Chief Justice could be included in the line of succession.  Article II Section 2 refers to “ Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States” so clearly Judges are included in the phrase “Officers of the United States”. Thus, an argument against including legislators among “Officers” on the basis of separation of powers clearly doesn’t hold.  While I wish the language were clearer, and I don't think that as a matter of policy that it is wise to expand the line of succession outside the executive branch, given the weight of historical precedent going back to the 18th century, I am forced to conclude that it is Constitutional.


Quick trivia question, under what circumstances might it be unconstitutional for a Speaker who satisfies the requirements of Article II Section 1 Clause 5 to become President?  (I say might because it requires yet more hair splitting of what certain words mean to reach the answer I’m looking for.)

[Emsworth]

Now it is obviously clear that under even the most obtuse of interpretations of tjhe word “Officer” that the Chief Justice could be included in the line of succession... Thus, an argument against including legislators among “Officers” on the basis of separation of powers clearly doesn’t hold. 

Article I, Section 6, Clause 2 prescribes that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This establishes an absolute separation between the membership of the executive and the membership of the legislature. However, there is no corresponding provision establishing an absolute separation between the executive and the judiciary. Thus, John Jay served simultaneously as Chief Justice and Ambassador to England; John Marshall was simultaneously Chief Justice and Secretary of State. In a sense, the separation between the executive and judicial branches is weaker than the separation between the executive and legislative branches.

I think, therefore, that a separation of powers argument that prevents legislators but not judges from acting as President is perfectly legitimate.

The argument that members of Congress are not "officers" is extremely strong and convincing. It is reinforced by each of the following clauses:

Article I, Section 6, Clause 2 states: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This clause makes it perfectly clear that members of Congress hold neither "civil Office," nor "any Office under the United States."

Article II, Section 1, Clause 2 provides: "[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." This clause clearly distinguishes between persons holding offices, and senators and representatives.

Article II, Section 2, Clause 2 states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." Members of Congress are not appointed by the President; they cannot be included within the term "all other Officers of the United States."

Article II, Section 3 states that the President "shall Commission all the Officers of the United States." Members of Congress are not commissioned by the President; thus, it would follow that they are not officers of the United States.

But the single most convincing provision is Article VI, Clause 3. It provides: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." This clause makes it clear that, at both federal and state levels, legislators are considered members of one category, while executive and judicial officers are considered members of a different category. It would have been far more concise to simply refer to "legislative, executive, and judicial officers, both of the United States and of the several States"; but the Framers did not choose to do so. It would appear, then, that the term "officer" does not include a legislator of any kind.

[True Federalist (진정한 연방 주의자)]

I can somewhat agree with you for generic legislators, but the Speaker and the President pro tempore are Officers of the House of Representatives and the Senate respectively and thus “Officers”.

[A18]

See my earlier post for a response to that.

[True Federalist (진정한 연방 주의자)]

I did, and while I agree with all the difficulties you rasied, especially in the case of an acting President, I don't agree because of the combination of the vagueness of the language and the history of the succession law.  In any case, until we get a Secretary of State suing the ex-Speaker of the House over who gets to be President, I don't think the Constitutionality will be resolved.