I recently re-watched the 1972 TV movie “The Man”. The synopsis:
The President and Speaker of the House die in an accident (I think there was a fire or explosion at their hotel).
The VP is called in and says, “Sorry, but no dice.” He’s in failing health and tells them that if he is inaugurated, they’ll just have to go thru the same thing again in just a few months.
Next in line is the President pro tempore of the Senate—played by James Earl Jones.
But the question. . .
Legally, what would happen in this situation? If the VP (or whoever is next in the line of succession) decides he/she doesn’t want the job. What is the law on not accepting the position?
Well the President can resign right? That would seem to imply that they can turn down the position. I’m not sure if they would retain their old position though.
But the possibility of resignation doesn’t mean the successor doesn’t succeed to the presidency to begin with. My WAG would be that the second the POTUS dies, the successor becomes President by the mere fact of the President’s death, because the Constitution says so. He/she can resign immediately afterwards, but he/she will have been President in the time in between.
It seems to be that this only applies to the Vice President, though. The Presidential Succession Act specifies:
So it seems the Speaker of the House could avoid becoming President by refusing to resign from his previous office.
The Vice President automatically becomes President upon the death of the dead President.
So if the VP truly were not interested, it wouldn’t be his choice, anyway. He’s stuck with the job no matter what. So to avoid being President, he would have to immediately resign the position.
After the VP, the Constitution gives Congress the power to decide upon the line of succession. As Schnitte points out, the statute requires that the Speaker (and the Pres. Pro Tem.) resign their legislative positions before becoming President. So they could presumably refuse to do so.
Officer refers to cabinet secretaries (affirmed in the impeachment of Sen. Blount) thus having the SOTH and the PPTOTS in the line of succession may be unconstitutional.
The Presidential Succession Act of 1792 – which lasted until 1886, and the Presidential Succession Act of 1947 – which replaced the law of 1886 – both put the Speaker and President Pro Tem ahead of cabinet officers.
So that particular interpretation was only a part of public law for 61 years, and wasn’t even considered a proper interpretation by the first Congress. Since that Congress included a Senate whose members were elected by the same state legislators who ratified the Constitution, you’d think if anyone had believed the action to be unconstitutional, the law would have been challenged.
IANAL but I would think the law could only be challenged if it went into effect. Forgetting about David Rice Atchinson for a moment, we have never been without a President and Vice-President at the same time. I suspect if Bush and Cheney both died tomorrow, we may see a lawsuit Rice v Pelosi wherein Rice claims that SOTH is not an officer under Article 2 and therefore cannot be appointed president. Pelosi would have the two-pronged attack of your idea plus that the “officer” section of this section is superceded by the 25th Amendment.
The succession act requires the Speaker and President Pro Tem to resign from Congress before acting as President, so I don’t think there would be any conflict there. I expect that if the President were under a temporary disability while the Vice Presidency was vacant, the Speaker and President Pro Tem would decline resign from their positions in Congress to serve briefly as acting President, and the acting position would likely devolve on the senior eligible cabinet secretary.
On the question of the OP, Article II, section 1 provides: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: [Presidential oath of office].”
If someone in the line of succession declines to take the oath of office he or she cannot “enter on the Execution of his Office” and thus would have an “Inability to discharge the Powers and Duties of the said Office,” allowing the presidency to devolve on the next eligible and willing officer.
Not sure I agree. Note that the 25th A says “shall become” rather than “becomes.” If the succession is automatic, then what is the legal effect of the swearing-in?
When Kennedy was assassinated, Johnson felt it was important to take the oath of office as quickly as possible so that he was officially President in case the assassination was part of a wider attack against the government. So he seemed to feel there was a difference between being next-in-line for the Presidency and actually being President.
My belief is that nothing is official until somebody takes the Oath of Office. Up until then somebody might be acting in the capacity of President but it’s a temporary condition. Once they take the Oath, it’s official and they are the President.
And to answer the OP, I see no reason a person can’t decline the office.
I won’t claim to be a constitutional scholar myself but I’ve read the works of several such. This is the first time I’ve come across that opinion so I hardly think it can be a consensus.
By coincidence, I’m currently rereading America’s Constitution: A Biography by Akhil Reed Amar. He opens his chapter on “Presidential Powers” with five pages of discussion about the importance of the Presidential Oath of Office.
I’d like to see a citation on that as well, because the “Before he enter on the Execution of his Office” language pretty clearly states that taking the oath of office is a prerequisite to serving as President.
There may be authority that failure to uphold the terms of one’s oath of office may not be used as a basis to sue an office holder, but I don’t think that there is authority that one may execute the office as President without having been sworn in.
Point me in the right direction then. Who should I be reading for the opposing view?
I’ll admit I find it difficult to believe that the oath taking is not considered the point when a person becomes President. A President’s term of office does not begin on Election Day or when the Electoral College meets; it begins on Inauguration Day. If the President-elect were to die before being inaugurated, nobody would be saying that he had actually been President - the current President would have still been holding office and would be succeeded by the Vice President-elect as President when he takes the oath on Inauguration Day.
One could make the argument that this provision, since it passed after Article II and makes no mention of the oath of office, abolishes the need for the incoming president or VP to take any oath or affirmation.
It occurs to me that the there have been times when a Vice President has (with consent), assumed Presidential powers – typically when the Preisdent has undergone a medical procedure involving anesthetic. I can’t imagine that an oath of office was administered to the VP on those occasions. That does seem to suggest that the oath is at least regarded in practice as symbolic.
One place to find an opposing view is in the discussion of the “David Rice Atchison was president for a day” legend. That hinges on the fact that Zachary Taylor refused to take the oath on Inauguration Day, which fell on a Sunday. He waited until the following Monday. Snopes on the subject:
