The Substitution Clause

Abstract

There appears to be little controversy around counting John Tyler as the tenth President of the United States. When Tyler first claimed this title after the death of William Henry Harrison, however, John Quincy Adams and other critics objected that he was not President at all; he was the Vice President, acting as President. Tyler got his way, and subsequent Vice Presidents faced with the same situation all followed the "Tyler precedent." The Twenty-fifth Amendment eliminated the ambiguity surrounding the proper role of the Vice President following the removal, death, or resignation of the President, but the same provision that governed the succession of the Vice President in the pre-Twenty-fifth Amendment Constitution still governs the line of succession after the Vice President.

The Succession Clause does not allow for succession at all. It allows for a substitute to "act as President." A more fitting name would be the Substitution Clause. An important consequence of a proper reading of the Substitution Clause is that the resignation requirement of the Presidential Succession Act of 1947 is unconstitutional. The 1947 statute requires an officer to resign her office before she may take over from a departed or incapacitated President. But the Substitution Clause does not authorize a person to become President; it annexes the powers and duties of the office of President to another office, and the holder of that office acts as President ex officio. Many scholars have claimed that the Presidential Succession Act of 1947 is unconstitutional because the Speaker of the House is not an "Officer" for the purposes of the Substitution Clause. We disagree. The sole constitutional infirmity of the statute is the resignation requirement. Another important consequence is that an acting President does not need to be constitutionally qualified to be President. For example, a naturalized citizen, serving as Speaker of the House, could act as President.

The Substitution Clause did not authorize Tyler to become President, and so he never became President. He was the Vice President, acting as President. For many Americans, however, the Tyler precedent seems to have acted as a kind of unofficial constitutional amendment. While the meaning of the Substitution Clause and the controversy over Tyler's claims to be President have been largely forgotten, both the text and the history of the Substitution Clause are clear: a designated officer can act as President; she cannot become President.

Keywords: constitutional law, presidential succession, Succession Clause, Twenty-fifth Amendment, Twenty-second Amendment, Twelfth Amendment, Presidential Succession Act of 1947, John Tyler