3

Assume that due to an accident, attack or catastrophe several persons on the U.S. Presidential Line of Succession are incapacitated (or dead) together with the current president. In order with a contingency plan of the federal government, a person (say the Secretary of Defense) is sworn in. Shortly afterwards however, other persons on the list are found to be not incapacitated after all (e.g. rescued or found to be absent from the disaster). What does that do to the acting president? Is he/she automatically demoted again? If not, what if the actual President comes back "from the grave"?

edit: To clarify the question: Which instance is legally capable to declare an acting president and which instance can reverse that decision? Surely such an instance has to exist, since otherwise no one could rely on the executive power of the acting president?

  • 1
    The last part sounds like exactly what happens today when President is incapacitated (it happened at least 1 time that I recall during Bush years) - the President automatically returns to power as soon as he is capacitated again and presumably verified to be for real. Based on that logic, I think that if someone higher up the chain of command resurfaces, the same thing would happen (they would need to be sworn in first, at which point they take over as Acting Pres). Having said that, this is common sense with no references, so not posting as an answer. – user4012 Nov 21 '16 at 20:25
  • (I'm probably wrong) the same system is applied when the president is incapacitated due to medical problem; the VP "becomes" president until the real president is back to full health (if VP is sick then the next in line ... ) – Max Nov 21 '16 at 21:02
  • It all depends on how quickly the interim President can get laws and/or the Constitution changed. :P – PoloHoleSet Nov 22 '16 at 20:36
6

This is specifically addressed in the Presidental Succession Act (US Code Title 3, Chapter 1, § 19) (emphasis mine)

(c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that— ...

  • (2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.

(d)

  • (1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: [list snipped]

  • (2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.

So, in other words:

  • The President and Vice-President can take the office from any Acting President, whether they were presumed dead and found to be alive, or simply temporarily disabled.
  • A Speaker or President pro tempore of the Senate can bump a Cabinet member out of the office by taking office, being found alive, recovering from disability, or simply becoming old enough to be President.
  • A Cabinet member may or may not be able to take the office of Acting President from another Cabinet member, depending on the specific circumstances. The language there is unclear, although the intent seems to be to prevent it.

It is worth noting that none of these provisions have ever been used or tested in court. It's possible that if an event happened such that they were needed, a Cabinet member who was presumed dead (and thus passed over) may try to argue that "presumed dead" is not a disability or failure to qualify in the sense of (d)(2), and that they should replace the current Acting President. At that point, they would have standing to sue the current officeholder, and the courts could decide which one will hold the office, whether it's a political question that courts can't address, or whether the whole act is unconstiutional.

  • I'm not sure I fully agree the excerpt of the Presidential Succession Act specifies what you indicate in the 3rd bullet point. Specifically, (d)(1) indicates the removal of disability of anyone on the list doesn't terminate the service of the current acting president (note: "not under disability" is mentioned in (d)(1)(b) as a requirement to serve). It doesn't seem to specify what happens for a case like presumed dead but later discovered not to be dead. In fact since it mentions "prior-entitled individual" not "President or Vice President" there is still that possibility. – eques Nov 22 '16 at 17:21
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    @eques - I actually went back and forth on that while I was writing it up. My first draft separated out "presumed dead", but I eventually went with this version because of the way those two combine: if "under disability" does not include "presumed dead", then there couldn't be an Acting President sworn in until it was confirmed that everyone higher was actually dead. Therefore, removal of the "presumed dead" "disability" doesn't allow that person to qualify. – Bobson Nov 22 '16 at 17:26
  • My point would be that if disability == "anything which prevents them from serving" then the section wouldn't have been written as such because the section makes it clear that the listed in section one cannot replace another Acting President due to removal of their own disability. It wouldn't be an exception. It would be the entire rule. – eques Nov 22 '16 at 17:29
  • @eques - You might be right, but it also doesn't make any sense to phrase it as written instead of "except that the ability to qualify or removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection shall not terminate his service". I read it as a catchall "no change of circumstances". But I can see where you're coming from too, and I'll agree that it's ambiguous. I'll add a line to the answer about the ambiguity. – Bobson Nov 23 '16 at 0:00
  • From my reading, (d)(2) allows someone including one on the list from section 1 to replace the current Acting President when able to act unless it is by removal of a disability. – eques Nov 23 '16 at 0:11
3

The oath of office is a formality and doesn't directly convey the ability to act as President. The succession law defines who becomes President, so given that if a person higher up the chain was discovered to be competent to act, then they would likely take over. The other Acting President's actions would probably be upheld unless the new Acting President revokes them.

2

The oath of office is just a requirement to taking the office. Taking the oath does not make you president. If it were, we could all be president.

  • I think you focused on the wrong part of the question. It's not about swearing in; it's about following the line of succession based on incorrect/incomplete information. – jwodder Nov 22 '16 at 3:51
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    The person who is rightfully in line is the president. If the wrong person was sword in, he's not the president. – user3344003 Nov 22 '16 at 3:55
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    That seems somewhat tautological. I used the oath of office mainly as a point in time of taking office. Such a point in time has to exist. According to your statement, in case of a missing POTUS the acting president never becomes president at all and all his/her orders are illegal? – choeger Nov 22 '16 at 8:22
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    Some snafu in the process does not re-write the Constitutional actual line of succession. This answer is completely correct. – K Dog Nov 22 '16 at 13:29
  • An oath is not constitutionally required for someone to act as President. When George HW Bush and Dick Cheney acted as President briefly on several occasions, they never took an oath. The Presidential Succession Act also doesn't mention any oath for the Speaker of the House or President pro tempore of the Senate. For the cabinet secretaries, it says that taking of the oath constitutes their resignation from their previous office, but doesn't actually say that taking of the oath is required to act as President. – user102008 Jan 26 '18 at 22:31

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