EDITORIAL DEPARTMENT CONSTITUTIONAL LAW (Presidential Succession Act) THAT the undoubted intention of Congress in enacting the Presidential Succession Act of 1886, to remove every difficulty which could have arisen under the old law, was not effec tuated, is the attitude of Hon. Charles S. Hamlin in an article, entitled "The Presiden tial Succession Act of 1886," in the January Harvard Law Review, (Vol. xviii, p. 182). By an examination of the proceedings of the constitutional convention he shows that "the framers of the Constitution did not intend that the acting President should necessarily serve for the balance of the unexpired term; on the contrary, they so drafted the Constitution that an intermediate election of President could be held." That this interpretation is correct has, however, been disputed. Of the Act of 1886, he says: — "It must be admitted that the Act, so far as relates to the constitutionality of the designa tion of the President pro tempore of the Senate and the Speaker of the House, has, by substi tuting the Cabinet officers, met the difficulties successfully. As regards, however, the im portant question, — whether Congress has con stitutional power to provide for an interme diate election of President, and whether the exercise of such power is expedient, — we shall find that the difficulties have not been re moved, but that, on the contrary, the doubtful questions have been left in greater uncertainty than before." "Although the Act of 1886 did specifically repeal the special election provided by the Act of 1792, yet the Ingalls amendment de prived this repeal of any significance, and left the question in suspense. There can be no possible doubt as to the motive in securing this latter amendment. It was made per fectly clear, both by Senator Ingalls and Sen ator Sherman, as shown above, that the object was to have Congress, when called together by the acting President, consider and deter mine whether or not to order a special election of President." "Conceding, however, that there is good ground for difference of opinion, both as to the constitutionality and expediency of a spe cial election, it will surely be agreed that the
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time for its discussion should not have been postponed, as it is by the Act of 1886, until the coming together of Congress in special session at the call of the acting President. Surely, also, there is no one who would not re gret the possibility of Congress being influ enced in its determination of such an import ant question by the opinion the members may entertain of the person at the time holding the office of acting President. Such a condition, if it ever arose, might make this government one of men rather than of laws." "What, then, is the remedy for such de fects? The American people desire above all things to have certainty with regard to the succession to the Presidency. Two courses are open. The Act of 1886 may be amended so that the acting President shall expressly hold office for the balance of the unexpired term or until the disability be removed. Or, in the alternative, the Constitution may be amended to provide that a special election of President shall speedily be held where the offices of President and Vice-Président are both vacant through other causes than dis ability, and that the Secretary of State and other Cabinet officers respectively shall act as President only during disability or until the inauguration of the specially elected President. To remove all possible doubt, it should also be provided that the President so elected shall hold office only for the balance of the unex pired term. The vacancy in the Presidential office could then be filled with a minimum of disturbance to the business interests of the country. The new comer would hold office for a fixed term and would be independent of Congress, as was intended by the Constitution, whether he were designated as acting President or elected specially as President. The diffi culties and doubts first arising under the Act of 1792 and rendered little less obscure and disturbing by the Act of 1886, would disap pear. "It may be true that the difficulties pointed out in this article are somewhat remote and not likely to arise in the near future. They are, however, just as likely to arise as is the double vacancy, on the possibility of which the Act of 1886 depends. A fair discussion of the questions involved, therefore, would seem to be not without some useful purpose."
