Presidential Succession Jack Bauer Style

Presidential Elections make me think of one thing:

The number of fictional US Presidents in 24.

The fictional series 24 covered 8 days over slightly over 14 years. In that time there were 9 Presidents.

Two of them served full terms.

That is like having Presidents Lyndon Johnson, Richard Nixon, Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, William Clinton, George W Bush and Barack Obama in 14 years.

Imagine that many Presidents since Clinton’s last two years in office until present day.

The White House having such a fluid number of Presidents would probably put the country on the verge of a nervous breakdown. The United States has never had that level of instability in leadership (And probably a lot of FBI, CIA & Secret Service Directors fired for “losing another one”).

Moreover, seeking the Presidency looks like a bad life choice, given that John Keeler and Wayne Palmer had both assassination attempts and could not complete their term of office (not clear if they actually died).

Or fictional former President David Palmer catching a bullet for preparing to expose the treasonous actions of President Charles Logan (Never mind the legal issues of Jack just executing Palmer’s killer).

Here is the breakdown of the 24 Presidents:

One 4 Year Term: Harry Barnes (Never seen and President on Day 1, so he was at the end of his term)

One 4 Year Term: David Palmer (Acting President James Prescott for a few hours)

One 4 Year Term: John Keeler, Charles Logan (Vice President who becomes President), Hal Gardner (Confirmed as Vice President and becomes President after Logan had David Palmer Assassinated)

One 4 Year Term: Wayne Palmer (for a few months) and Noah Daniels

Partial Term: Allison Taylor (Resigned, who would be followed by her VP)

How could this happen under the US Constitution? Under Section 1, Article II of the Constitution, a US President’s term of office is four years. Pursuant to the 22 Amendment to the US Constitution, a President may only serve two terms. Additionally, no person (the Vice President or if things were really bad, former Speaker of the House), who had acted as President for more than two years of a term, may only be elected to one term themselves. However, the 25th Amendment, followed by the Presidential Succession Act of 1947, are our keys to understanding these hyper-accelerated Presidencies.

The 25th Amendment to the United States Constitution:

1:  In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2:  Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3:  Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4:  Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session.  If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The line of Presidential succession is defined under the Presidential Succession Act of 1947, which states, in relevant part:

(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

(2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.

(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.

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—
(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and
(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: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.
(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.
3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.

Luckily, US History is rather dull compared to 24. The 25th Amendment has only been applied a handful of times, such as in President George W Bush’s first and second terms when he had two different medical procedures, making Vice President Cheney the Acting President for a few hours each time.

The big example of the Constitution getting a workout was after Richard Nixon resigned, making Vice President Ford the new President. Ford has the distinction of being the only person who was not elected President or Vice President who ultimately became Commander-in-Chief. Throw in Nelson Rockefeller as Vice President, and from August 1974 to January 1977, neither the President or Vice President had been popularly elected.

There is one odd footnote on Presidential Succession from the 19th Century: On March 4, 1849, President-Elect Zachary Taylor did not get sworn in, because it was a Sunday, thus took the oath of office on March 5 (Until Truman, Presidential terms ended on March 4).

Technically, President James K. Polk’s term ended at noon on March 4. Small problem: Taylor had not yet taken the oath.

The United States Senate website has the odd story that the then Senate president pro tempore, David Atchison, claimed he technically was President for 24 hours (arguably Polk’s term was extended one day). There are problems with “President Atchison’s” claim, because technically Atchison’s term as president pro tempore also should have ended on March 4 (Let alone Atchison taking the oath of office). However, he claimed that not only was he President of the United States for 24 hours, he had “the honestest administration this country ever had.”

In the final analysis, what can we learn from 24? First, while the United States does not go through Presidents like they are wearing Red Shirts, the Constitution does provide for many contingencies if a nightmare situation happens. Or a President needs a root canal.

Second, while the fictional Jack Bauer was great at fighting terrorists, he was no Clint Eastwood when it came to being In the Line of Fire.

Not sure how Bauer is with talking to chairs.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.