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10/09/2020

Must the Speaker Resign to Become Acting President? (with an Answer from Seth Barrett Tillman)
Michael Ramsey

Earlier we discussed whether it is constitutional for Congress to provide that the Speaker of the House (or the President pro tempore of the Senate) will become acting President upon the death or disability of the President and Vice President.  Let's assume it's constitutional.  A followup question: must the Speaker (or President pro tempore) resign to become acting President, or could they hold both offices together?

The current presidential succession act (3 U.S.C. 19(a)(1) requires that the Speaker resign:

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

But it appears that the first presidential succession act, adopted in 1792, did not have this requirement:

That in case of removal, death, resignation or inability both of the President and Vice President of the United States, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives, for the time being shall act as President of the United States until the disability be removed or a President shall be elected.

Might this run afoul of the incompatibility clause (art. I, sec. 6)?

 [N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

(Thanks to Andrew Hyman for raising the question.)

It depends on whether acting President is an "Office under the United States."  The obvious person to ask this question is Seth Barrett Tillman.  Here's his response: 

You ask: "[I]f the Speaker becomes acting president under the succession act, in your view does the incompatibility clause require that the speaker resign from Congress?"

Under Amendment XXV, when a VP succeeds to the presidency following a Section 3 or Section 4 declaration of presidential inability, the VP becomes "Acting President." A credible argument can be made that the "Acting President" was intended to be an "office." This language of "Acting President" only appears in Amendment XXV.

By contrast, under Article II, Section 1, Clause 6, a statutory successor to the presidency does not become President; rather, such a person "acts as President." My view is that characterizing an Article II statutory "successor" as an "Acting President" is a misnomer. 

A statutorily designated "officer" who "acts as President" has a special authority granted by statute enacted pursuant to Article II, Section 1, Clause 6. My view is that the only office a statutory successor holds is the one which qualifies him to succeed, and that such an officer does not hold the office of president or the office of "Acting President." The statutory officer who "acts as President" does not hold an "office" associated with the presidential office, and, therefore, does not hold an "office under the United States" associated with the presidency. 

For that reason, the Constitution's Incompatibility Clause does not pose a bar against a Speaker or other House or Senate officer to act as President: one who acts as President does not hold an "office" and does not hold an "office under the United States" in consequence of acting as President. Because the Incompatibility Clause's "office under the United States"-language does not apply at all to a Speaker acting as President, the clause imposes no bar against a Speaker acting as President, and it imposes no duty on a "rising" Speaker to resign from Congress or to resign the position of Speaker. The Presidential Succession Act imposes such a duty--but that is a different issue. 

Apparently George Washington agreed, at least on the conclusion, as he signed the 1792 succession act without any recorded objection.

ANDREW HYMAN ADDS:  Thanks to Seth Barrett Tillman for this answer.  Assuming this answer is correct, a followup question is this:  Does the Succession Clause (Art. II, Sec. 1) imply that a person can continue to act as president only by maintaining the office that entitled that person to act as president?