Presidential Succession in an Age of Partisan Polarization

Over the course of the last several weeks, Americans have had occasion to think about Presidential succession. Should President Biden continue to resist calls from Democratic party leaders and voters to relinquish his place on the ballot, and in the event that, against the odds, he wins the Presidency, there is a substantial possibility that the deterioration in his physical health and mental acuity could advance to the point at which Vice President Harris would, by the terms of Section 1 of the 25th Amendment, become President. Meanwhile, the almost-successful attempt to assassinate former President Trump is a grim reminder that the American Presidency is soaked in blood--a fact unlikely to change, given American gun culture (as I discussed in a Verdict column earlier this week). One way or another, the probability of a transfer of power from a President to a Vice President during the coming years is non-trivial.

Readers of this blog who are not also intimately familiar with the details of the constitutional text may be surprised to learn that the provision stating that the Vice President becomes President upon the death of the President was not adopted until 1967, when the 25th Amendment was ratified. How's that? Isn't the main point of having a Vice President that the VP becomes President if the President dies or resigns? And before 1967, eight American Vice Presidents (John Tyler, Millard Fillmore, Andrew Johnson, Chester A. Arthur, Theodore Roosevelt, Calvin Coolidge, Harry S. Truman, and Lyndon B. Johnson) ascended to the Presidency upon the President's death by assassination or natural causes. What gives?

The short answer is that the original Constitution was unclear about what exactly happens when a President dies or becomes incapacitated in office. Article II states that in such circumstances the powers and duties of the Presidency "devolve on the Vice President." When Vice Presidents took over, it was unclear whether they were merely acting Presidents or actual Presidents.

Moreover, the pre-1967 Constitution authorized (and still authorizes) Congress to legislate a mechanism for selecting a President if both the Presidency and Vice Presidency are vacant, but it had no mechanism for filling a vacancy in the Vice Presidency while there is a sitting President. That meant that when a VP ascended, the President's party lacked the tie-breaking Senate vote that the Vice Presidency confers.

Did the 25th Amendment fix the problem? Not entirely. It provides that when there's a vacancy in the office of the Vice Presidency, the President nominates and Congress--by a majority vote of each House--confirms the choice. That provision has been used twice: when Nixon named Ford to replace Agnew and again when Ford named Rockefeller to replace himself, after he ascended following Nixon's resignation.

But that was then. Nixon resigned because he faced the certain prospect of impeachment and removal due to the fact that members of his own party were prepared to vote to impeach and convict. A Democratic-majority House and Senate confirmed both Ford and Rockefeller. In our current era of much sharper partisan division, there is real doubt whether a Republican-controlled chamber of Congress would confirm a Democratic President's nominee to fill a Vice Presidential vacancy. Given the somewhat asymmetrical nature of our polarization, it's more likely (though not certain) that a Democratic-controlled chamber would confirm a Republican VP nominee.

To make matters concrete: Suppose Joe Biden resigns the Presidency tomorrow. Kamala Harris becomes President. She now nominates a VP. Will the House confirm? I doubt it. Confirming Harris's pick for VP would effectively give the Democrats back their tie-breaking vote in the Senate.

Perhaps House Republicans aren't worried about giving the Democrats back that extra vote in the Senate because they figure they can block any needed legislation in the House? Even if so, there's another reason why they'd likely resist confirming Harris's VP pick: Because the succession statute makes the Speaker of the House next in line after the Vice President. Mike Johnson might think that he increases the odds of his ascension to the Presidency if Harris lacks a VP.

I'll conclude with a caveat and a broader observation. The caveat is that some scholars--most notably Professors Akhil Amar and Vik Amar--have argued that the succession statute is unconstitutional because the House Speaker and the President pro tem of the Senate (who is next in line) aren't "officers" within the meaning of the relevant clause of Article II. If they're right, then the problem of cross-partisan succession goes away, because the Secretary of State is next in line. However, as the Amar brothers themselves point out in the article just linked, the circumstances under which this sort of issue would arise would be fraught, making swift and certain resolution potentially impossible.

Now the broader observation.

The U.S. Constitution was written by people who did not want or expect for there to be political parties. The 12th Amendment, enacted in response to the deadlocked election of 1800, solved a small piece of the problem, but the broader issue remains. As Professors Rick Pildes and Daryl Levinson observed in an important article, the result is that the system does not operate according to the Madisonian theory of checks and balances: when the Presidency and Congress are controlled by the same party, there is insufficient checking; when we have divided government, there is too much. Polarization merely exacerbates the problem, giving us either gridlock or an unchecked executive.

What's so remarkable about the difficulties I've noted here is that some of them are a function of constitutional provisions adopted long after the Founding, by which time the party-based nature of our system was long recognized. As late as the 1960s--with the proposal and adoption of the 25th Amendment--we see provisions granting power to Congress without apparent recognition of the partisan dynamics that could be at play. It nonetheless worked well enough into the 1970s to confirm Ford and Rockefeller.

But as I said above, that was then.