Is Presidential Succession a Duty?

Here’s an oddball question.  Is someone who is in the line of executive succession required to say yes or resign if the office falls to them?  Can one decline, stay in office, and give the presidency to the next person?

The Vice-President has a duty to become President if the Presidency is vacant.  Section One of the 25th Amendment says that “the Vice-President shall become President” if the president dies, resigns, or is removed by impeachment.  The VP can resign the presidency, of course, but he or she may not decline and remain vice-president.  What about the folks behind the VP in the queue?  The Executive Succession Act of 1947 also uses mandatory language for everyone else named in case the leadership is blown away by a bomb.

There is one curious point though.  Next in line after the Speaker of the House is the President Pro Tempore of the Senate.  (Currently Patrick Leahy).  He could resign as the President Pro Tempore without resigning from the Senate.  Since President Pro Tempore is a meaningless office (aside from succession), that person, in effect, can decline the job and keep his real office (being a Senator).  (There is no reason why the President Pro Tem should be in the line of succession.  The Senate Majority Leader is a far better choice.)

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1 Response

  1. Howard Wasserman says:

    As for Speaker and P/P/T, the statute uses mandatory language that the person acts as president “upon his resignation” from the legislative office and seat. But we could read the statute as not making resignation mandatory, only service upon resignation. In that case, the Speaker person has not “qualified” to act as president (by virtue of still holding a legislative office) and we move further down the line of succession.

    As for cabinet officers, the preliminary question is whether someone can act as president and be Secretary of State (I don’t know the answer, but my guess is not, as a statutory matter)? If no, we could read § 19(d) the same way. The cabinet officer shall act only if he first resigns his cabinet post, but in not resigning, he is “under disability to discharge the powers and duties.” So we move down the line.