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Acting President of the United States is a reference to a person who legitimately exercises presidential powers even though that person does not hold the office of the President of the United States in their own right.
Article II, section 1 of the Constitution, appears to establish the position of acting President:
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, 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. (Emphasis added.)
Article I, section 3 of the Constitution, providing for the election of officers of the Senate, appears to assume that the Vice President succeeds to the Office of the President rather than merely discharging the duties thereof:
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
The Senate shall chuse [sic] their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. (Emphasis added.)
The above texts raised many questions regarding the status of a Vice President upon the death or resignation of the elected President, and whether he would be an "Acting President," which raised the following questions:
Since a strict adherence to either of the two sections of the Constitution could yield opposing interpretations, there was, naturally, much disagreement when the matter was first put to the test. 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, thus establishing precedent in accordance with the Article I interpretation. Constitutional scholars, while not generally criticizing Tyler's actions, nonetheless were uncomfortable with the informality of this process and could easily imagine problematic situations in which the applicability of the precedent would not be clear. This question would come up repeatedly over the next 100 years until resolved by the ratification of the 25th Amendment in 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 believe that Tyler's actions in succeeding Harrison as President directly conflicted 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 as President, as in 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". The amendment is describing Presidential elections, and the duty of the House of Representatives in choosing a President when the Electoral College is deadlocked. The clause assumes a Vice Presidential candidate has cleared all electoral hurdles and can carry out the duties of the President until the House can select a full-term President per its Constitutional requirements. Because someone presumably could claim constitutional priority to the presidency over the Vice President in this scenario, the Vice President logically could not assume the full Presidency. "Constitutional disability" in this context could describe either the potential President's failure to meet the eligibility requirements of the office or his not having completed his electoral affirmation by Congress.
Because President Harrison was dead, Tyler could not lose his constitutional authority to act as President other than through his own death or incapacity, and therefore the assumption of the full title of President was simply a matter of semantics. When the 20th Amendment was ratified in 1933, section 3 superseded the above-quoted portion of the 12th Amendment but did nothing to clarify what qualified as a "constitutional disability":
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Despite ratification of these amendments, the death, resignation, or removal from office of the President remained the only means by which a Vice President could discharge the powers and duties of the office. The amendments' provisions remained untested in over a dozen instances in which a President's health or other considerations might have made it prudent to have the Vice President act as President, including these:
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.
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.
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 is once again able to discharge the powers and duties of the presidency.
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 Cabinet ("the principal officers of the executive departments"), to declare the President disabled.
The not-self-declared incapacity provision established by section 4 of the 25th Amendment requires action by "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". Therefore, the text of the 25th Amendment allows Congress to transfer, by law, the role of the Cabinet to another body. In that case, instead of actions taken by the Vice President and a majority of the Cabinet, the procedures under section 4 of the 25 Amendment would require action by the Vice President together with a majority of the other body provided by law. However, Congress has not passed a statute transferring to another body the role of the "principal officers of the executive departments" in determining presidential incapacity, and therefore that role is vested in the Cabinet.
When the declaration certifying the President's incapacity, signed by the Vice President and by a majority of the members of the Cabinet, is transmitted in writing to the Speaker of the House of Representatives and to the President pro tempore of the Senate, the Vice President immediately becomes Acting President.
If the President submits a letter to the leaders of Congress stating that he is able to discharge the powers and duties of the presidency and four days elapse without further action on the part of the Vice President and a majority of the Cabinet, then the Vice President's service as acting president is terminated. Thus, unlike the procedure under section 3 of the amendment, a declaration by the incapacitated President to the effect that he is able to resume the powers and duties of his office does not have immediate effect if the incapacity was declared under section 4 of the amendment. The President only resumes his powers and duties if the Vice President and a majority of the Cabinet do not recertify the President's incapacity within the constitutionally prescribed four-day period. If the Vice President and a majority of the Cabinet recertify that declaration to the leaders of Congress, the Vice President remains in his role as Acting President and Congress is constitutionally obligated to consider (or to assemble within 48 hours and consider, if not already in session) the issue. The Congress has a maximum of 21 days after receipt of the Vice President and Cabinet's most recent letter to decide if the President is indeed not able to discharge the powers and duties of his office. If Congress does not, by two-thirds vote of each house, determine, within the mandated 21 day period, that the President is indeed unable to discharge the powers and duties his office, then those duties automatically return to the President and the Vice President's service as Acting President ends.
From the text of section 4 of the 25th Amendment, it is not clear whether or not the Vice President and a majority of the Cabinet can recognize and declare by themselves that the President's incapacity has ceased, provoking the immediate cessation of the Vice President's service as Acting President and the immediate return of the powers and duties of the presidency to the President. The text of the amendment mentions only a letter by the President himself, stating that he is now able to resume his powers and duties, and it requires the President to wait for four days for a possible recertification of the incapacity by the Vice President and Cabinet, so that the President's letter only has the effect of returning to him the powers and duties of the office after those four days elapse. But the text of the Amendment is silent about the possibility of the Vice President (then discharging the role of Acting President) and a majority of the Cabinet formally declaring to the Speaker of the House of Representatives and to the President pro tempore of the Senate that they agree that the reason for the section 4 declaration of incapacity has ceased, so that the President can resume the powers and duties of his office at once.
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. In cases such as the 1981 assassination attempt on President Ronald Reagan, 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.
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 Congress to deliver an amendment which did not name specific officers to succeed the President.
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 (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, clause 6, of the Constitution. Congress has chosen to regulate both situations by the same statute, and the Presidential Succession Act 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 able to discharge the powers of the presidency.
Apart from the circumstances 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 codified 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 after the President and the Vice President:
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 directly 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 likelihood 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 greatly decreased.
The practice of naming a designated survivor originated during the Cold War amid fears of a nuclear attack. Only Cabinet members who are eligible to succeed to the presidency (i.e., natural-born citizens over the age of 35) are chosen as designated survivors. For example, Secretary of State Madeleine Albright was not a natural-born citizen (having immigrated to the United States at age 9 from Czechoslovakia), and was thus skipped in the official line of presidential succession. The designated survivor is provided presidential-level security and transport for the duration of the event. An aide carries the nuclear football with them. However, they are not given a briefing on what to do in the event that the other successors to the presidency are killed.
Since 2005, members of Congress have also served as designated survivors. In addition to serving as a rump legislature in the event that all of their colleagues were killed, a surviving Representative and Senator could ascend to the offices of Speaker of the House and President Pro Tempore of the Senate, offices which immediately follow the Vice President in the line of succession. If such a legislative survivor were the sitting Speaker or President Pro Tempore – as for the 2005, 2006, and 2007 State of the Union addresses, in which President Pro Tempore Ted Stevens (R-Alaska) or Sen. Robert Byrd (D-West Virginia) was also a designated survivor – he or she would become the Acting President of the United States rather than the surviving Cabinet member. However it is unclear whether another legislator could do so without first being elected to that leadership position by a quorum of their respective house.
To date,[update] no one other than a Vice President has acted as President.
Under both the 25th Amendment and the Presidential Succession Act, an Acting President has identical constitutional "powers and duties" as the President, being able to sign bills into law, petition Congress for a declaration of war, and perform other tasks, but does not hold the office of President itself. The incapacitated President remains the sole holder of the presidential office, although the powers and duties of the presidency are transferred to the Acting President. 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. In other words, the incapacitated President does not become an ordinary citizen. The President is deprived of the powers and duties of the office, but not of presidential status. Similarly, while the Vice President is discharging the powers and duties of the presidency pursuant to sections 3 or 4 of the 25th Amendment, he still holds the office of Vice President, and would be both Vice President and Acting President simultaneously.
The presidential oath is not taken by the Vice President upon the 25th Amendment's incapacity provision being invoked. As stated above, an Acting President is not the same as President. The former merely exercises the powers and duties of the President, without actually holding the office of President.
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.
In the three occasions when the 25th Amendment has been invoked, there is no record of the Vice President having taken the oath. In the case of the Amendment's second invocation by President George W. Bush in 2002, a detailed account of the procedure was subsequently given by the White House Press Secretary, and no mention whatsoever was made of the oath being taken by the Vice President. Instead, it is recorded that Vice President Cheney was informed by telephone that he was now Acting President once the invocation letters signed by the President were transmitted to the Speaker of the House and the President pro tempore of the Senate. Likewise, there is no historical record of Vice President George H. W. Bush taking the oath when he filled in for President Ronald Reagan during the latter's colon surgery nor of Cheney taking the oath the second time he assumed George W. Bush's presidential duties.
It should be noted, however, that the Presidential Succession Act of 1947 (that applies only 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.
An Acting President serves until:
The only occasions when the office of Acting President came into existence were instances of invocations of the 25th Amendment, specifically of section 3.
Neither section 4 of the 25th Amendment, nor the Presidential Succession Act of 1947 and its predecessor acts have ever come into operation.
Only three times in American history has someone acted as President. In all cases, the self-declared incapacity method was used by a President to voluntarily transfer presidential authority to his Vice President:
On March 30, 1981, another situation with the potential for the invocation of the 'Acting President' provision occurred when President Ronald Reagan was shot and wounded in an assassination attempt by John Hinckley, Jr. 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'état. Reagan would eventually recover, but constitutional scholars such as Herbert Abrams have opined that the 25th Amendment should have been invoked in order to clarify the acting chain of command.