A Distinct System for Presidential Succession on Inauguration Day: Getting the Most Out of Section 3 of the Twentieth Amendment

57 Pages Posted: 24 Apr 2024

See all articles by Brian C. Kalt

Brian C. Kalt

Michigan State University College of Law

Date Written: March 28, 2024

Abstract

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not--and should not--be governed by a one-size-fits-all approach.

Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies: at the outset of a term, when nobody is available to become President or Vice President in the first place.

Significantly, Section 3 gives Congress much more flexibility for inauguration-day double vacancies than Article II allows for middle-of-the-term ones. But Congress has never fully embraced its Section 3 powers: When Congress wrote the current succession law in 1947, it chose a monolithic system that ignored the distinctive needs of inauguration-day succession and left Section 3’s flexibility unused. The time for Congress to make full use of its Section 3 powers is long overdue.

Moreover, Section 3 has been largely neglected by scholars. The time for a full-length published treatment of Section 3 is overdue as well.

Keywords: 20th Amendment, Twentieth Amendment, presidential succession

JEL Classification: K00

Suggested Citation

Kalt, Brian C., A Distinct System for Presidential Succession on Inauguration Day: Getting the Most Out of Section 3 of the Twentieth Amendment (March 28, 2024). Cardozo Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4776773

Brian C. Kalt (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6987 (Phone)
517-432-6879 (Fax)

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