Article 1, Section 3, Clause 5: Officers of the Senate

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

As with the House of Representatives, the Senate is authorized to choose its own officers, and in general these closely parallel the officers of the House. However, while the Constitution creates only the Speaker as an officer of the House, it creates two officers of the Senate, the Vice-President and the President pro tempore. The latter is constitutionally designated as the President of the Senate whenever the Vice President is not present and presiding.

This raises the interesting question of why the Framers felt a need to specifically mention a Senate officer to act in the absence of the regular President of the Senate (who is also the Vice-President), but saw no such need in the case of the Speaker of the House. Three explanations come to mind.

First, the Vice President, unlike the Speaker of the House, is not chosen by the Senators, but by the Electoral College. It seems possible that the Framers felt the need to empower the Senators to chose “one of their own”, so to speak, to hold the second place in the Senate. In this respect, the President pro tempore parallels the Speaker of the House. There is no explicit constitutional requirement that the President pro tempore be a Senator, but in practice he always has been. And the term “President” contrasts with “Speaker” in its etymology and meaning; it more strongly implies one who is first among equals from within the Senate.

Second, the Framers seem to have anticipated that the Vice-President would have significant duties other than as President of the Senate, even when not acting as President of the United States (hence “in the absence of the Vice President, or when he shall exercise the Office of President of the United States”; our emphasis.) They did not anticipate that this would be the case for the Speaker of the House. We noted in our previous post that the office of Vice-President was a very late addition to the draft Constitution — almost an afterthought — and, as we shall discuss in due course, the Framers invented the office more for its significance in electing the President than for its own sake. This is consistent with the somewhat ill-defined character of the office of Vice President, who, other than acting in place of the President or presiding over the Senate, has no constitutionally defined role. The Framers seem to have expected that the office would come to shape itself over time, and likely did not anticipate that the office would become largely obscure and ceremonial for most of the early  history of the Union. It may be significant that the office was vigorously exercised by Jefferson (much to Adam’s chagrin) and other early Vice Presidents, and its decline dated to about the time that the generation of the Framers had passed on.

The third explanation is that the Framers thought it important to define a clear line of succession to the Presidency of the Senate, in the event the Vice President succeeded to the Presidency. This again suggests that they expected the office of Vice-President to be more important than it became. This also bears on the question of Presidential succession, which was left somewhat muddled by the Framers. The first President to die in office was William Henry Harrison, in 1841, ten years after the death of James Madison drew the curtain on the Framer’s generation. None of the Framers were present to explain their intentions in the subsequent debate over succession to the Presidency.

The debate focused on whether the Vice President actually became President when the latter died or otherwise left office, or whether he simply exercised the powers of the President as Vice President. The issue was made pressing when William Henry Harrison died just a month into his term in office, so that the next regular Presidential election would not take place for almost four years. There was considerable support in Harrison’s cabinet for the idea that Tyler would be “Vice President acting President”,  but it is difficult to see how this could be sustained for four years. In any case, Tyler acted decisively to establish that he was now President and not just Vice President acting President, having himself sworn in immediately as President by Judge William Cranch, then Chief Judge on the United States Circuit Court of the District of Columbia. By so acting, Tyler and Cranch gave a judicial imprimatur to the concept that the Vice President actually succeeded to the Presidency upon the death of the President.

There are other ways this could have gone. It seems to us, based on our reading of the Constitution and the debate of the time, that there were three possibilities. The first is what actually took place, which is that the Vice President actually became President. (We might as well say now that we have no particular philosophical objection to this outcome.) The second is that the Vice President became acting President until the next election. This was obviously awkward when that election was almost four years away, and in practice, it would have been indistinguishable from the Vice President actually succeeding to the Presidency. The third, and quite interesting, possibility is that the Framers expected the Vice President to act as President only until the College of Electors could chose a new President.

The rest of our discussion of what the Framers intended is best deferred to our post on Article 2, Section 1, Clause 7.

Under A.2 S.1. C.7, Congress was empowered to establish by statute the succession to the Presidency after the Vice-President. The President pro tempore was established as next in line after the Vice President in 1792. He was removed entirely from the succession in 1886. In 1947 he was returned to the succession, but now in fourth place, after the Speaker of the House. There is no constitutional reason why this could not be changed again, though there seems to be no particular need nor sentiment to do so as of 2021.

It is notable that there is no provision for succession to the Vice Presidency. If the Vice President succeeds to the Presidency — whether as President or merely as Vice President acting President — the President pro tempore effectively becomes president of the Senate. This would not be the case if a new Vice President was to be chosen to replace the Vice President now acting as President. This particular ambiguity was resolved by the 25th Amendment, Section 2.

The Senate has not always chosen a standing President pro tempore. In the early years of the Union, the Senate chose a President pro tempore on an ad hoc basis, only when they felt there was a need for one. However, after the first few decades of the Union, the Vice President rarely presided over the Senate, and the President pro tempore became a standing office. The office took its current form  around 1890, when it became tradition for the President pro tempore to be the senior Senator from the majority party in the Senate. Because such a senior Senator was likely to be chair of a major Senate committee and to have other pressing duties, it has since become tradition for the President pro tempore to appoint a Deputy President pro tempore to actually preside, and this position is typically rotated daily among junior Senators to give them experience in parliamentary procedures.