Return to the Presidential Succession Act of 1886 (With Some Modification)

Ronald L. Feinman is the author of “Assassinations, Threats, and the American Presidency: From Andrew Jackson to Barack Obama” (Rowman Littlefield Publishers, 2015).  A paperback edition is now available.

A major controversy has arisen over the issue of presidential succession in the wake of President Donald Trump’s diagnosis with COVID-19.

There have been three presidential succession laws enacted. The first, in 1792, set up the President Pro Tempore of the Senate and the Speaker of the House of Representatives as the first two leaders following the Vice President, and then followed by cabinet officers in order of the creation of the Cabinet positions by Congress.  That law survived the crises that followed the deaths of William Henry Harrison, Zachary Taylor, Abraham Lincoln, and James A. Garfield, without the need to go beyond the Vice President.  

However, during the second abbreviated term of Abraham Lincoln and his successor Andrew Johnson (1865-1869), the nation potentially faced an unprecedented crisis, as two situations developed around Andrew Johnson. John Wilkes Booth plotted to eliminate both Lincoln and Johnson. If conspirator Lewis Powell had not gotten drunk and failed to assassinate Johnson, Connecticut Senator Lafayette Foster, the President Pro Tempore of the Senate,  would have succeeded Lincoln, a point this author points out in his book on presidential assassinations (Assassinations, Threats, and the American Presidency: From Andrew Jackson to Barack Obama, Rowman Littlefield Publishers).  Also, if Andrew Johnson had been successfully removed from office by impeachment, it would have led to then President Pro Tempore of the Senate Benjamin Wade of Ohio becoming President. Wade was a major critic of Johnson and refused to abstain from the vote to convict Johnson.  That fact led a group of seven Republican Senators, who disliked Wade and his lack of ethics, to join with 12 Democrats to save Johnson from conviction and removal from office in 1868.

In 1886, the Congress wisely changed the Succession Law of 1792, and eliminated both the President Pro Tempore of the Senate and the Speaker of the House of Representatives from the line of succession. In so doing they took partisan politics out of the issue of who should succeed a President.  So the Cabinet Officers of the President, in order of the creation of the agencies, became the new order of succession, and remained so until 1947, spanning the deaths in office of William McKinley, Warren G. Harding, and Franklin D. Roosevelt.  

However, as reported in this author’s Assassinations book, Theodore Roosevelt faced a mostly unknown threat on September 1, 1903 when Henry Weilbrenner approached Roosevelt's family home at Oyster Bay, New York, attempting to get past the Secret Service detail created after President William McKinley’s assassination in September 1901.  Possessing a firearm, Weilbrenner claimed he wanted to marry the President’s daughter, Alice. Fortunately, Weilbrenner never was able to meet the President late on that evening.  Had an untoward event occurred, however, Secretary of State John Hay, who had been a private secretary to Abraham Lincoln in the White House, would have become President.

After President Franklin D. Roosevelt’s death in 1945, and the succession of Harry Truman to the Oval Office, the Republican Party opposition was able to gain massive control of the 80^th Congress in the midterm elections of 1946, and were able to pass the Presidential Succession Act of 1947, again putting the Speaker of the House and President Pro Tempore of the Senate in line of succession after the Vice President, and before the Cabinet Officers. This was a purely partisan political act, with Republicans Joseph Martin and Arthur Vandenberg leading the way.  

In so doing, we have seen in the 74 years from 1947 to 2021 a situation in which the Speaker of the House has been of the party in opposition to the president for a total of 44 of 74 years, 60 percent of the time.  And the opposition party has held the position of President Pro Tempore of the Senate for 34 of the 74 years, nearly half the time.

This is not a tenable position in today's hyper-partisan environment. Therefore, reverting to the Presidential Succession Act of 1886, with updates for the additional Cabinet positions since created makes sense, although the idea of the order of succession being based on when the agency was created needs to be modified to allow the Secretary of Homeland Security, the last position created after September 11, to move up to next in line after the Attorney General and before the Secretary of Interior, due to the national security ramifications, in case of a Presidential vacancy.

Even though Cabinet Officers are not elected, it makes for better continuity that those selected by a President be in line for succession in case we ever have to go beyond the Vice Presidency in case of any unforeseen emergency, and it insures that there is a continuation of the political party chosen by the voters to control power in the Executive branch for that term of office.