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Acting President of the United States

From Academic Kids

Acting President of the United States is a temporary office in the government of the United States, established under the auspices of the Twenty-fifth Amendment to the United States Constitution (ratified in 1967).

Contents

Origin of the position: Constitution (1787)

Article II, Section 1 of the Constitution endeavored to establish the position of Acting President. Unfortunately the wording of the clause intended to do so was more confusing than clarifying. It reads:

"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 constitutional text raised several questions regarding the possibility of someone serving as an Acting President, and in fact these questions likely prevented it from ever happening:

  • Did the phrase "the same shall devolve upon the Vice President" refer to the office of President, or simply to its powers and responsibilities?
  • Under what specific conditions does a Vice President (or any other officer) become Acting President?

Presidential succession precedent

Any question regarding the Vice President succeeding to the presidency was for all intent and purpose 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 was applied until ratification of the 25th amendment in 1967.

Presidential disability prior to 1967

The questions raised regarding a potential Acting President was raised several times during the nation's history when presidents became incapacitated. In each case, the Vice President (or other officer) did not act as President, most likely because there was no established process for doing so. Some constitutional authorities feel that Tyler's actions as outlined above were in fact in direct conflict with the wording of the Twelfth Amendment, adopted in 1804. The third-to-last sentence of the amendment reads thus:

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.

This clause is vague in at least two ways. First, it is unclear what are the "other constitutional disabilities" besides death. The only other provision in the text of the original Constitution providing for the succession of the Vice President was in the event of the President being impeached by the House of Representatives and then being convicted after trial by the Senate. Nothing within the text of the original Constitution seemed to indicate or even imply that a President under impeachment by the House and awaiting trial or being tried by the Senate was anything less than fully President. Second, it is unclear which Vice President should act as President in the event this clause were to attach: the outgoing Vice President or the Vice President-elect. The clause has traditionally generally been interpreted to mean that the Vice President-elect would act as President until the situation were resolved and then would be replaced by the newly-chosen President. Nonetheless, once Tyler's interpretation became the accepted precedent, it was regarded as the binding and applicable one until the Twenty-fifth Amendment clarified the matter.

Among the cases where a president was disabled include:

  • May, 1790, when President George Washington was debilitated for several days due to a severe case of influenza. Many thought Washington would die from the episode, but neither Vice President John Adams nor the Senate chose to attempt to invoke any constitutional provisions installing Adams as Acting President, since there was no provision for such an action.
  • 1813, when President James Madison suffered from a high fever and was subject to bouts of delirium for several weeks. During this period some believed that he had become deranged and was unable to carry out his presidential responsibilities. However, even though this episode occurred during a period of intensive military operations during the War of 1812, apparently no serious consideration was given to removing Madison from office on even a temporary basis.
  • Early 1818, when President James Monroe was temporarily incapacitated by malaria. Monroe recovered fully, and, again, having the Vice President (Daniel D. Tompkins) act as President was never seriously considered.
  • 1868, when President Andrew Johnson was impeached and subsequently tried by the Senate. Though Johnson was ultimately acquitted, a case could be made that during this period he should not have been permitted to exercise his constitutional authorities. The office of Vice President being vacant, however, Senate President Pro Tempore Benjamin Franklin Wade would have been the person called upon to act as President upon Johnson's impeachment. Seeing as how Wade was among those who sat in judgment of President Johnson, however, a declaration of disability could have been seen as akin to an outright coup d'etat by Congress.
  • On July 2, 1881, President James Garfield was shot by an assassin. Though Garfield would live another 80 days, most of this time he was under heavy sedation and incapable of discharging his presidential tasks. Vice President Chester Arthur, however, did not act as President during this period, as there was still no apparatus in place for installing him into such a position.
  • 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 with Johnson, there was again no Vice President in place to succeed to the Presidency, and no procedure for allowing anyone to act as President in the event that Arthur had become totally disabled.
  • On June 13, 1893 and again on July 17, 1893, President Grover Cleveland underwent two operations to remove (and repair damage from) a rather significantly sized cancerous tumor from his upper jaw. The American people did not learn of this disability until 1918, however, well after Cleveland's term (and Cleveland himself, for that matter) had expired, and what plans which may have been made for the event of Cleveland's failure to recover fully, if there were such, have either not been preserved or have never been discovered.
  • On September 6, 1901, President William McKinley was shot by an assassin. During the next ensuing eight days (until his death), Vice President Theodore Roosevelt could have assumed the nation's leadership as Acting President, but again no apparatus for installing him was in place.
  • 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 almost inconceivable at the time, today it would be considered widely acceptable and understandable for a President to temporarily transfer power due to grief caused by an illness not his own.
  • On September 25, 1919, President Woodrow Wilson suffered a slight stroke. Later, on October 2, he suffered a massive, debilitating stroke which left him partially paralyzed and completely incapacitated. Rather than any attempt being made to transfer any aspect of Presidential authority to Vice President Thomas Riley Marshall, Wilson's condition was hidden from the Vice President, the Cabinet, Congress and the public. For the remainder of Wilson's second term, he was kept physically isolated so as not to alert anyone of his disability. Many believe that First Lady Edith Bolling Galt Wilson was a de facto leader during this time as she controlled all access to Wilson and pronounced what his desires and opinions were; however, she was not Vice President and held no official office, although critics then and later derided her as "the first woman President".
  • Repeatedly from late 1943 through April 12, 1945, during which time President Franklin D. Roosevelt reportedly suffered from various ailments including malignant melanoma, hypertensive cardiomyopathy, severe high blood pressure, congestive heart failure, and stroke-related symptoms (to which he would eventually succumb). However, his Vice President during the first portion of this period, Henry Wallace, had largely become to be 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 any potential form of weakness open to exploitation by an enemy. Even when Wallace was supplanted as Vice President in January of 1945 by Harry S. Truman, he, too, was largely kept ignorant as to the actual facts of Roosevelt's health until after his death and Truman's accession to the Presidency.
  • Throughout the presidency of Dwight Eisenhower, there were several instances where the president was disabled, the most severe of which occurred in September, 1955 when Eisenhower suffered a heart attack while on vacation. He also suffered from a bowel obstruction which required surgery and incapacitated him from June 8-June 14, 1956, and from a mild stroke that incapacitated him from November 25-November 28, 1957. In each case, Vice President Richard Nixon did carry out some of Eisenhower's presidential responsibilities, but full presidential authority (such as signing bills into law, for example) remained solely with Eisenhower.

25th Amendment

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."

Authorities

An Acting President has identical constitutional authorities and responsibilities as would an elected President. He may sign bills into law, petition Congress for a declaration of war, or perform any other presidential task or responsibility. An Acting President is even addressed as "Mr. President" during his service.

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 thesis can not be proven to date, as the only former Acting President is George H. W. Bush who is already a former President and who succeeded to the presidency from the vice-presidency. Assuming that Vice-President Dick Cheney is not elected to the presidency in 2008, he will be the first former Acting President for which this question is relevant.

Action by others as President

In initial drafts of what became the 25th Amendment, the line of presidential succession was to include the Speaker of the House of Representatives and the President Pro Tempore of the Senate in the case of disability to both the President and Vice President. Mindful of the past history of presidential succession law however, Congress eventually sent the states an amendment which did not constitutionally place these officers in the succession line.

However, Congress does provide for others to act as President in cases where neither a President nor Vice President is capable. While none of these officers would succeed to the presidency in the same manner a Vice President would, Title 3, Chapter 1, Section 19 of the United States Code (also known as the Presidential Succession Act) creates a line of succession that allows officers, in the following order, to act as President:


The Secretary of Homeland Security, as of 2005, is not officially part of the line of succession.

To date no one other than a Vice President has acted 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; or,
  • At the expiration of the term for which the elected President was chosen, whereupon the President-elect would take office; or,
  • The death, resignation 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 current federal law) serve out the remainder of the presidential term as Acting President.

History of Acting Presidents

Invocations of 25th Amendment

Only twice in American history has someone acted as President. In both cases, the self-declared incapacity method was used by a President to voluntary 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.

Other cases

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 William Jefferson 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.

See also: Acting (law)

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