Presidential Succession: Does the Constitution Allow the People of the United States to Fire the President?

By Davidson, Dan; Turmel, Stacey | Southern Law Journal, Fall 2018 | Go to article overview

Presidential Succession: Does the Constitution Allow the People of the United States to Fire the President?


Davidson, Dan, Turmel, Stacey, Southern Law Journal


I. INTRODUCTION

In the history of the United States no President has been relieved of his duties nor removed from office while still living. Forty-four different men have been elected President, and only nine of them failed to complete his term in office. There has been one resignation in which a President voluntarily surrendered his office and stepped down (Richard M. Nixon). There have been eight Presidents who died while in office, four of natural causes (William H. Harrison, Zachary Taylor, Warren G. Harding, and Franklin D. Roosevelt) and four who were assassinated (Abraham Lincoln, James Garfield, William McKinley, and John F. Kennedy). There have been others who were temporarily relieved of the power of office during health emergencies, including Dwight D. Eisenhower, Ronald Reagan, and George W. Bush. However, each resumed the power of the Presidency upon recovering from his health issue.

There have also been two impeachments brought by the House of Representatives against a President (Andrew Johnson and William J. clinton) to remove him from office under the constitutional authority given to Congress.1 However, in each of these cases the Senate failed to find the accused guilty and each served out his respective term following the impeachment trial.

While no president has been involuntarily removed from office, recently there has been a great deal of discussion and speculation concerning the potential removal of President Donald J. Trump, either through impeachment or under the provisions of the Twenty-Fifth Amendment to the Constitution. This paper will discuss the Constitutional and statutory provisions regarding Presidential succession, paying particular attention to the Twenty-Fifth Amendment and its potential application.

II. PROVISIONS FOR PRESIDENTIAL SUCCESSION

A. The Original Constitution

The original Constitution was ratified by the states on June 21, 1788, when New Hampshire became the ninth state to vote in favor of ratification. As ratified, the original Constitution did not make any specific provisions for Presidential succession, instead stating that:

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 on the Vice President.2

It did, however, provide that:

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.3

This language authorizes Congress to enact legislation that would determine which officer would then act as President until the President's disability was removed or a President would be elected. This implies that, upon the removal, death, resignation, or disability of the President, the person designated to act as President would have the authority to exercise the powers and carry out the duties of the President. However, he or she would be the acting President, serving until the President's disability was removed or a new President was elected. Accepting that implication, he or she would exercise the powers and perform the duties, but would not be sworn in as the President of the United States.

B. The Tyler Precedent

While this omission regarding Presidential succession did not seem terribly important at the time of the ratification, it would become an issue just over half a century later. In 1840 William Henry Harrison was elected President of the United States and John Tyler was elected Vice President. President Harrison proceeded to deliver the longest inaugural address in history on March 4, 1841, an extremely cold day. President Harrison did not wear a hat during his address. He did, however, develop pneumonia shortly thereafter and died a month later.4 Upon the death of President Harrison the powers and duties of the President devolved on Vice President Tyler. …

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