Acting President of the United States

Seal of the President of the United States

Acting President of the United States is a temporary office in the government of the United States, established under the auspices of the Constitution of the United States, particularly its 25th Amendment (ratified in 1967).

Origin of the position: Constitution (1787)

John Tyler, the first to assume the Presidency following the death of a President

Article II, Section 1 of the Constitution tried to establish the position of Acting President, but unfortunately the clause adopted proved more confusing than clarifying:

"In 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 upon the Vice President, and 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."

Questions raised

The above text raised many questions regarding the status of an Acting President, and as a result likely prevented anyone from ever assuming the position. Among the questions raised were:

• Whether the phrase "the same shall devolve upon the Vice President" referred to the office of the President, or simply its powers and responsibilities. If it meant the office, then a disabled President had no legal method of returning to power.
• What specific conditions would install the Vice President (or another officer) as Acting President. Would Congressional action be necessary to declare a President disabled, or could he declare himself incapacitated?

Presidential succession precedent

Any question regarding the Vice President succeeding to the presidency was for all intents and purposes resolved in April 1841 when John Tyler succeeded William Henry Harrison upon Harrison's death. Tyler made it clear that he was the President rather than the Vice President acting as such, and that precedent prevailed until ratification of the 25th amendment in 1967.

Presidential disability prior to 1967

The possibility of installing an Acting President was informally discussed several times prior to the ratification of the 25th amendment, but in nearly every case the Vice President (or the next in the line of succession) did not act, most likely because there was no formal process established for doing so.

Some constitutional scholars feel Tyler's actions in succeeding Harrison as President were in direct conflict with the provisions of the 12th amendment, adopted in 1804, which reads in part:

And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act (emphasis added) as President, as in the case of the death or other constitutional disability of the President (emphasis added).

This clause proved vague, in that it was unclear what qualified as a "constitutional disability." So despite the amendment's ratification, the death, resignation, or removal from office of the President would remain the only means by which a Vice President could discharge the powers and duties of the office. Its provisions would remain untested in over a dozen situations where a President's health or other considerations might have made it prudent to have the Vice President act as President, including:

• During May, 1790, when President George Washington was temporarily debilitated due to a severe case of influenza. Many thought Washington would die, but neither he, Vice President John Adams, or the Senate attempted to invoke any effort to temporarily install Adams as Acting President, as there was no provision for such action.
• For several weeks in 1813, when President James Madison suffered from a high fever and delirium. During this time some felt he had become deranged and was unable to carry out his responsibilities - particularly troublesome in the midst of the War of 1812. Despite occurring during a period of intensive military operations, apparently no serious thought was given to removing Madison from office temporarily, perhaps in part because his Vice President, Elbridge Gerry, was in the final year of his life himself.
• During early 1818, when President James Monroe was temporarily incapacitated with malaria. Monroe recovered, and transferring power to Vice President Daniel D. Tompkins was again never considered.
• On March 4, 1849 President-elect Zachary Taylor was to be inaugurated, but he refused as it was a Sunday and did not wish to break the Sabbath. Because of this, some have argued that neither Taylor nor his Vice President Millard Fillmore had any legal authority as president. They go on to argue that, as the previous President's term had expired at noon, David Rice Atchison was Acting President for the day. Both claims are heavily disputed by historians and Constitutional scholars (see the article on Atchison for more detail).
• During the 1868 impeachment trial of President Andrew Johnson. Though ultimately acquitted, some argue he should not have been permitted to exercise his constitutional authorities during this time. With the Vice Presidency vacant during the trial, the person next in line was Senate President Pro Tempore Benjamin Franklin Wade. As Wade was one of those who sat in judgment of Johnson, a declaration of disability could have been seen as akin to an outright coup d'etat by Congress, and consequently was never considered.
• During the summer of 1881, following the July 2 shooting of President James Garfield by Charles Guiteau. Though Garfield would live 80 days after the shooting, most of this time was spent under heavy sedation and he was incapable of discharging presidential duties. Despite a widespread belief that Vice President Chester Arthur was a puppet of the Tammany Hall factions of the Republican Party, and particularly New York Senator Roscoe Conkling, Garfield's cabinet at least informally discussed scenarios under which Arthur could act as President. Again however, there being no apparatus in place and no precedent, nothing came of it.
• In 1884-1885, when Garfield's successor, Chester Arthur, was suffering the effects of the Bright's disease that would take his life less than two years after leaving office. As had been the case with Andrew Johnson before him, there was no Vice President in place to succeed, and no procedure for allowing anyone to act as President in the event that Arthur had become totally disabled.
• On June 13 and July 17, 1893, respectively, when President Grover Cleveland underwent two operations to remove (and repair damage from) a rather significantly sized cancerous tumor from his upper jaw. The operation was kept secret until 1918, well after Cleveland's death, and any plans related to his potential long-term disability, if there were any, were not documented.
• During September, 1901. Following the shooting of President William McKinley in Buffalo, New York by Leon Czolgosz on September 6, Vice President Theodore Roosevelt was summoned to Buffalo, but no action was taken to permit him to discharge McKinley's duties during his final days.
• During May, 1909, when President William Howard Taft fell ill with influenza and simultaneously suffered a family tragedy (his wife had suffered a stroke). While perhaps inconceivable today, at the time it would have been considered widely acceptable for a President to temporarily transfer power due to grief caused by an illness not his own.
• President Woodrow Wilson suffered a slight stroke on September 25, 1919. On October 2 it was followed by a massive, debilitating stroke which left him partially paralyzed and completely incapacitated. Rather than to transfer Presidential authority to Vice President Thomas Riley Marshall, Wilson's condition was hidden (to the extent that he was physically isolated) from the Vice President, the Cabinet, Congress and the public for most of the remainder of his second term. Many feel that First Lady Edith Bolling Galt Wilson was the de facto President, as she controlled access to Wilson and spoke on his behalf.
• Throughout the period from late 1943 until President Franklin Roosevelt's death on April 12, 1945. Roosevelt reportedly suffered from various life-threatening ailments, including malignant melanoma, hypertensive cardiomyopathy, severe high blood pressure, congestive heart failure and stroke-related symptoms (to which he'd eventually succumb). Henry Wallace, his Vice President for most of this period, was largely regarded by many governmental and Democratic insiders as too close to the Soviet Union and potentially a Communist sympathizer, so moving him in to any sort of Acting Presidency or co-Presidency was never seriously considered. Also, it was considered necessary for national security purposes during World War II not to show weakness to America's enemies. When Wallace was supplanted as Vice President in January, 1945 by Harry S. Truman, he was also kept unaware of Roosevelt's condition.
• During the mid-point of Dwight Eisenhower's presidency there were three instances where the president was disabled. The first of which occurred in September, 1955 when Eisenhower suffered a heart attack while on vacation. On June 8, 1956 he was hospitalized for a bowel obstruction that ultimately required surgery and incapacitated him for six days. Then on November 25, 1957, Eisenhower suffered a mild stroke that caused him to be hospitalized for three days. In each case, Vice President Richard Nixon did carry out some of Eisenhower's informal presidential responsibilities, but full presidential authority (such as signing bills into law, for example) remained solely with Eisenhower.
• In 1965, President Lyndon B. Johnson had a gallbladder operation. During the surgery & recovery, there was no move to have Vice President Hubert H. Humphrey assume presidential powers & duties.

25th Amendment

File:Bushsr.jpg

George H. W. Bush, as Vice President was the first person to become 'Acting President' under the provision of the 25th amendment on July 13, 1985.

The 25th amendment, ratified in 1967, clears up many of the issues which surrounded presidential succession and incapacity. Section 1 made it clear that in the event of a vacancy in the office of President, the Vice President succeeds to the office, while Section 2 established a procedure for filling Vice Presidential vacancies.

Pertinent text of the Amendment

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit 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 Vice President shall immediately assume the powers and duties of the office as Acting President.

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. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Self-declared incapacity

Section 3 of the amendment set forth a procedure whereby a President who believes he will be temporarily unable to perform the duties of his office may declare himself "unable to discharge the powers and duties of his office."

Upon this declaration, which is transmitted in writing to the Speaker of the House of Representatives and the President Pro Tempore of the Senate, the Vice President becomes Acting President. The Vice President continues to act as President until the President declares, by another letter to the leaders of each house of Congress, that he's again able to discharge the powers and duties of the presidency.

Incapacity declared by Vice President and Cabinet

Section 4 of the amendment sets forth a second procedure establishing presidential incapacity. This second method allows the Vice President, together with a majority of the members of the President's cabinet, to declare the President disabled.

Upon this declaration, which is transmitted in writing to the Speaker of the House of Representatives and the President Pro Tempore of the Senate, the Vice President immediately becomes Acting President. The Vice President continues to act as President until the President declares, by another letter to the leaders of each house of Congress, that he's again able to discharge the powers and duties of the presidency. The Vice President and the cabinet may countermand that declaration, however, whereupon Congress must convene in emergency session to decide who shall discharge the powers and responsibilities of the presidency.

Ostensibly to be used in the event of a President's complete mental or physical disability, this method of transferring presidential power has never been used - no doubt in part because it could appear to the American public as a "legal coup d'etat". In cases such as the 1981 assassination attempt on President Ronald Reagan however, this method of designating an Acting President could have been justified, in consideration of the fact that Reagan was literally unable to give any orders in the immediate aftermath of the shooting, prompting the Secretary of State to proclaim "I'm in charge here."

Preliminary drafts

In preliminary drafts of what ultimately became the 25th Amendment, the line of presidential succession was spelled out in great detail, including the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the existing cabinet officers.

Realizing that committing such a list to the constitution could cause issues later should amending the line of succession be desirable, however, led the Congress to deliver an amendment which did not constitutionally place these officers in the succession line.

Action by others as President under the Presidential Succession Act

Congress, acting under the powers conferred upon it by Article II, Section 1 of the United States Constitution, and by Section 3 of the 20th Amendment, has provided for cases where neither a President nor Vice President is able to discharge the powers and duties of the office of President via the Presidential Succession Act of 1947 (officially styled "An Act to provide for the performance of the duties of the office of President in case of the removal, resignation, death, or inability both of the President and Vice President").

The constitutional delegation of authority that enabled Congress to enact the Presidential Succession Act is twofold: the authority of Congress to regulate cases when neither a president-elect, nor a vice president-elect have qualified, determining who shall act as president in that specific situation stems from section 3 of the 20th Amendment. On the other hand, the power of the Legislature to determine who shall act as President in the cases of removal, resignation, death, or inability both of the President and Vice President is provided for in article Article II, section 1 of the Constitution. Congress has chosen to regulate both situations by the same statute, and the Presidential Succession Act it passed in 1947 deals with both cases.

The Presidential Succession Act of 1947 is not the first statute to have been enacted by Congress under the above mentioned constitutional provisions. Before the enactment of the current statute previous Acts of Congress (the Presidential Succession Acts of 1792 and 1886) dealt with the hypothesis of there being neither a President nor a Vice-President albe to discharge the powers of the presidency.

Apart from the circumnstances regulated by sections 3 and 4 of the 25th Amendment, the provisions of the Presidential Succession Act of 1947 regulate the only other scenarios in which the office of Acting President would come into existence.

While none of these officers would succeed to the presidency as would a Vice President, the provisions of the Presidential Succession Act of 1947, now codifyed in Title 3, Chapter 1, Section 19 of the United States Code, create a line of succession that allows the Speaker of the House, the President pro tempore of the Senate, and Cabinet officers, to serve as Acting President in the case of removal, resignation, death or inability of both the President and Vice-president, and also in the case of failure to qualify of both a President-elect and a Vice president-elect.

The following is the currently established line of succession:

1. Speaker of the House of Representatives
2. President Pro Tempore of the Senate
3. Secretary of State
4. Secretary of the Treasury
5. Secretary of Defense
6. Attorney General
7. Secretary of the Interior
8. Secretary of Agriculture
9. Secretary of Commerce
10. Secretary of Labor
11. Secretary of Health and Human Services
12. Secretary of Housing and Urban Development
13. Secretary of Transportation
14. Secretary of Energy
15. Secretary of Education
16. Secretary of Veterans Affairs

The fact that section 2 of the 25th Amendment allows a President to nominate a new Vice-president whenever a vacancy occurs in that office, while not direcly impacting the Presidential Succession Act, has greatly diminished the potential for its coming into operation. Indeed, since the office of vice-president, once vacant, no longer remains vacant until the end of the presidential term, but is now filled by presidential nomination confirmed by Congress, the likelyhood of there ever being a time when there is simultaneously neither a president nor a Vice-president able to discharge the powers and duties of the presidency has surely decreased, although such a tragedy scenario is, of course, still possible.

To date no one other than a Vice President has acted as President.

Authorities

An Acting President has identical constitutional authorities and responsibilities as the President, but does not hold the office in his own right. Both the 25th Amendment and the Presidential Succession Act clearly vest an Acting President with the "powers and duties" of the office, but not the office itself. An Acting President would, however, possess the same authority and status as the President would otherwise, being able to sign bills into law, petition Congress for a declaration of war, or perform other tasks. Acting Presidents are addressed as "Mr. President" during their service.

Also, it is important to note that the President who is unable to exercise the powers and duties of the office remains the President of the United States during the period when there is an Acting President, that is to say, the incapacitated President does not become an ordinary citizen. The President is merely deprived of the powers and duties of the office, but not of the presidential status.

The Acting President is not the President. The 25th Amendment makes it clear that, in the conditions described in its sections 3 and 4, the "powers and duties [of the office of the President], shall be discharged by the Vice President as Acting President." That is to say, the Vice President remains Vice President, but, due to the fact that the President has been declared unable to dishcharge the powers and duties of the presidency, such powers and duties devolve to the Vice President, who discharges them as Acting President. The Presidential Succession Act also makes clear that, when its provisions come into operation, anyone then called to act as President does not become President, but rather discharges the duties of the office as Acting President.

In an episode of the drama television series The West Wing it was speculated that after he leaves office the former Acting President will continue be treated with the same protocol given to all former Presidents of the United States. This cannot be proven to date, as the only Acting President to have not been himself later elected to the presidency is current Vice President Dick Cheney. Should he never succeed to the presidency, he would be the first for whom this is relevant. The likelihood in Cheney's case is remote due to his brief service, but a future Vice President who acts as President for an extended period of time may be more likely to be viewed as a former President.

Oath of Office

The presidential oath is not taken by the Vice President upon the 25th Amendment being invoked. As stated above, Acting President is not the same as President. The former merely excercises the powers and duties of the president, without actually holding the office of president.

And, while the Constitution requires the President to take this oath upon entering into the office, the 25th Amendment states that, upon it being invoked "the Vice President shall immediately assume the powers and duties of the office as Acting President." Thus, the Vice President becomes Acting President as soon as the Speaker of the House of Representatives and the President pro tempore of the Senate receive the written declaration issued under either section 3 or section 4 of the 25th Amendment, no oath being required.

Precedent confirms that, since, in the two ocasions when the 25th Amendment was invoked, there is no record of the Vice-president having taken the oath. In the case of the Amendment´s invokation by President Bush, a detailed account of the procedure was subsequently given by the White House Press Secretary, and no mention whatever was made of the oath being taken by the Vice-president.

It should be noted, however, that the Presidential Succession Act of 1947 (that applies when there is neither a President nor a Vice-president able to discharge the powers and duties of the office) makes reference to the oath, albeit in an indirect manner. It states that the Speaker of the House of Representatives, the President pro tempore of the Senate, and the mentioned members of the Cabinet, upon being called to act as president, shall resign their offices of origin, and, in the section referring to members of the Cabinet acting as President, it states that the taking of the oath of office by one person so called to act as president shall be held to constitute the said person's resignation from the Cabinet office by virtue of the holding of which he qualifies to act as President. However, the Act stops short of explicitly requiring the presidential oath to be taken. In any event, the Presidential Succession Act does not apply when the Vice-President is the one in place to act as President.

Term of service

An Acting President serves until:

• The President transmits "his written declaration" to the Speaker of the House of Representatives and the President Pro Tempore of the Senate, declaring that his period of incapacity has ended, if the incapacity was declared under section 3 of the 25th Amendment (self declared incapacity); or,
• when the President transmits his written declaration to the Speaker of the House of Representatives and the President pro tempore of the Senate declaring that that he is able to resume the powers and duties of his office and four days elapse without the Vice-president and a majority of the Cabinet restating their declaration that the president is unable to discharge the powers and duties of his office,If the incapacity was declared under section 4 of the 25th Amendment (action by Vice-president and a majority of the Cabinet).
• twenty one days elapse after the receipt, under section 4 of the 25th Amendment, of the declaration of the Vice-president and Cabinet, declaring, whitin four days of the president having declared that he was able to resume the powes and duties of his office, that they still believe that the president is unable to discharge those powers and duties, but only if Congress does not, within that period of twenty one days, determine, by a two thirds vote in both Houses, that the president is incapable of excercising his powers and duties.
• The death, resignation (it is not clear, however, if an incapacitated president would still be able to resign the office after his incapacity had been declared)or removal of the President. In this case a Vice President acting as President would succeed to the office. Any other officer acting as President, however, would (per the terms of the Presidential Succession Act of 1947) serve out the remainder of the presidential term as Acting President, instead of becoming President.
• A President-elect or Vice-President elect qualifying to hold the office, in a case in which the Presidential Succession Act has entered into operation due to the failure of both a President-elect and a Vice President-elect to qualify.
• A person mentioned in section A or B of the Presidential Succession Act of 1947 (Speaker of the House of Representatives or President pro tempore of the US Senate) becoming able to act as President, when those powers and duties are being exercised by a member of the Cabinet under section D of the said Act in virtue of there being no Speaker or President pro tempore able to act upon the enry into operation of the provisions of the said Act. In this case, however, an Acting President would be merely replaced by another Acting President, placed higher in the order of Succession.
• At the expiration of the term for which the elected President was chosen, whereupon the President-elect would take office.

History of Acting Presidents

The only occasions when the office of Acting President came into existence were instances of invokations of the 25th Amendment, specifically of its section 3.

Neither Section 4 of the 25th Amendment, nor the Presidential Succession Act of 1947 and its predecessor Acts ever came into operation.

Invocations of 25th Amendment

Vice President Richard Cheney,was the second person to become 'Acting President' under the provision of the 25th amendment on June 29, 2002.

Only twice in American history has someone acted as President. In both cases, the self-declared incapacity method was used by a President to voluntarily transfer presidential authority to his Vice President:

• On July 13, 1985, President Ronald Reagan underwent surgery to remove cancerous polyps from his colon. Prior to undergoing surgery, he transmitted a letter to the Speaker of the House and the President pro Tempore of the Senate declaring his incapacity. Vice President George H. W. Bush then acted as President from 11:28 a.m. until 7:22 p.m., when Reagan transmitted a second letter resuming the powers and duties of the office. Text of Reagan transfer of power letters.
• On June 29, 2002, President George W. Bush declared himself temporarily unable to discharge the powers and duties of the office prior to undergoing a colonoscopy which required sedation. Vice President Dick Cheney acted as President for a little over two hours that day (from 7:09 a.m. to 9:24 a.m.), whereupon Bush transmitted a second letter advising resuming the powers and duties of the office. Text of Bush transfer of power letters.

Confusion Regarding Reagan Invocation

Because of the wording of letter signed by President Reagan to declare his temporary inability, in which he expressed doubts about whether his situation would fall within the scope of the 25th Amendment, some argue that the invocation of the Amendment by him was invalid, and that no formal transfer of power took place. The following facts make it unquestioned that it had, in fact, occurred:

• His precise following of the provisions of Section 3 of the 25th Amendment, issuing written declarations to the president pro tempore of the Senate and to the Speaker of the House, declaring his temporary inability to discharge the office, and subsequent declaration that his disability had been removed.
• His post-presidential writings on the subject clearly stated that it was his intent to invoke the amendment.
• His chief counsel on the matter, Fred Fielding has been quoted as saying, "I personally know he (Reagan) did intend to invoke the amendment, and he conveyed that to all of his staff, and it was conveyed to the VP as well as the President of the Senate. He was also very firm in his wish not to create a precedent binding his sucessor."

So while Reagan didn't wish for his particular situation to establish a precedent binding future Presidents to turning over their authority every time they underwent surgery, his intent to transfer executive authority in that instance was clear.

Furthermore, the 25th Amendment does not require that the written declaration contain express words invoking the Amendment itself. It simply requires a written statement that the President is unable to discharge his powers and duties. The 1985 Reagan invocation letter was clear in stating that he would be incapable.

Other cases where invokation would have been possible

In addition to the two instances where it was utilized, in three other cases the 'Acting President' provisions of the 25th amendment could, at least in theory, have been utilized:

• During 1972, when President Richard Nixon was hospitalized due to phlebitis. At the time no consideration was given to installing Vice President Spiro Agnew as Acting President, but the precedents set by the invocations of 1985 and 2002 leave this as a case where power could have been temporarily transferred.
• On March 30, 1981, perhaps the most perfectly suited situation for the invocation of the 'Acting President' provision occurred when President Ronald Reagan was wounded by a would-be assassin. Though Reagan was clearly seen by his staff, Cabinet members and others as incapacitated, Vice President George H. W. Bush refused to join the Cabinet in invoking the 25th amendment, feeling it would be akin to a coup d'etat. Reagan would eventually recover, but nearly a quarter century later it is widely believed by constitutional scholars that the amendment should have been invoked during Reagan's recovery period.
• In 1998, following the impeachment of President Bill Clinton and during his subsequent trial in 1999. Though Clinton was ultimately acquitted, as with Andrew Johnson before him, it could be argued that during his trial he should have been relieved of his constitutional authorities, leaving Vice President Al Gore as Acting President.

In fiction and popular entertainment

The invocation of the 25th Amendment and the potential for a power struggle or coup d'etat are recurring themes in politically-themed entertainment. Acting Presidents have been featured on the television shows 24 and The West Wing, among others.

See also: Acting (law)

External links

• US Code: Title 3, Chapter 1, Section 19
• Presidential Line of Succession Examined, September 20 2003