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Wednesday, November 28, 2012

The President-Elect: Succession and Disability Issues During the Transition Period

Thomas H. Neale
Specialist in American National Government

Presidential transition is usually defined as the period and process that take place when one President prepares to leave office, due to retirement or failure to win reelection, and a successor prepares for inauguration. In modern times, the transition period begins immediately after the general election, which is held on Tuesday after the first Monday in November of every presidential election year, and concludes on the following January 20, when the new chief executive is sworn in. For the purposes of this report, the preceding period, which begins with the national party nominating conventions and concludes with the general election, is referred to as the presidential election campaign period. It should be noted that transition is not generally used to describe the period between the first and second terms of the Presidents who were elected to consecutive terms.

This report identifies and provides analysis of the procedures governing replacement of candidates for the office of President and Vice President during the presidential election campaign period, or replacement of a President- or Vice President-elect during the transition period. These procedures are determined by when they occur. Procedures applicable during the successive stages of the transition and election period are summarized below.

  • Before Election Day—During the Presidential Election Campaign Period. Between the national party nominating conventions, which generally take place in August of the presidential election year, and general election day (November 6 in 2012), the two major parties’ rules provide that replacement candidates would be chosen by their national committees should vacancies occur. 
  • Between Election Day and the Meetings of the Electors. At the general election, voters choose members of the electoral college, which formally selects the President- and Vice President-elect several weeks later (December 17 in 2012). Although the transmission period has begun, the political parties’ rules still apply: replacement candidates would be chosen by the party national committee. 
  • Between the Meetings of the Electors and Inauguration Day. Most, though not all, authorities agree that the President- and Vice President-elect are chosen once the electoral votes are cast on the first Monday after the second Wednesday in December (December 17 in 2012). The electoral votes are counted and declared when Congress meets in joint session for this purpose, which is set by law for January 6 of the year following the election, but Congress occasionally sets a different date for the joint session. Since January 6 falls on a Sunday in 2013, it is likely that Congress will set a different date, possibly January 7 or 8. In recent years, the customary legislative vehicle calling for the joint session has been a Senate Concurrent Resolution, introduced in the newly assembled Congress by the Senate Majority Leader. 
  • During the period between the date when electoral votes are cast and the January 20 inauguration, the 20th Amendment to the Constitution provides for succession: if the President-elect dies, the Vice President-elect becomes President-elect. Although the 20th Amendment does not specifically address the issues of disability or resignation by a President- or Vice President-elect during this period, the words “failure to qualify” found in the amendment might arguably be interpreted to cover such contingencies. 
  • While the 20th Amendment does not address vacancies in the position of Vice President-elect, these would be covered after the inauguration by the 25th Amendment. In the event no person qualifies as President or Vice President, then the Presidential Succession Act (61 Stat. 380, 3 U.S.C. 19) would apply: the Speaker of the House of Representatives, the President pro tempore of the Senate, and duly confirmed Cabinet officers, in that order, would act as President. 
  • Since the terrorist attacks of September 11, 2001, observers have expressed concern that an incident during the presidential inauguration ceremony might lead to the death or disability of most or all officials in the line of presidential succession. One potential remedy for this situation would be for an official in the line of succession, such as the Speaker of the House of Representatives or the President pro tempore of the Senate, to be absent from the ceremony. Another might be for a Cabinet secretary-designate of the new Administration to be nominated by the incumbent President, confirmed by the Senate, and installed prior to the inauguration. A third would be for a Cabinet secretary from the outgoing Administration to remain in office until after the inauguration, and away from the ceremony. Due to a convergence of circumstances, this occurred in 2009: Defense Secretary Robert Gates was asked by President-elect Barack Obama to stay on in the new Administration in order to provide continuity in an important Cabinet office. Subsequently, the Obama transition team and the outgoing Administration of President George Bush agreed that, in order to secure continuity in the order of presidential succession, Secretary Gates would not attend the inauguration ceremony.

Date of Report: November 14, 2012
Number of Pages: 12
Order Number: RS22992
Price: $29.95

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