Worrying About the Presidential Succession Law
posted by Brian Kalt
Legal scholars have complained for many years that the current presidential succession statute, passed in 1947, is unconstitutional.
The main complaint is that the Constitution’s Succession Clause empowers Congress only to place “officers” in the line of succession, and the Speaker of the House and the President Pro Tem of the Senate (whom the statute places second and third in line, respectively) are not “officers” as the Constitution uses the term.
There are other practical complaints too. Nowadays, the Speaker is usually not a member of the president’s party, and the President Pro Tem is usually very, very old. Both are members of the legislative branch, and not as well positioned as the secretary of state (next in line after them, but able to act as president only until there is a Speaker or President Pro Tem willing to bump the secretary of state) to step into the presidency.
The original succession law, passed in 1791, also had these problems (though the President Pro Tem was second in line, and the Speaker third). It also drew complaints about its constitutionality. The second succession law, passed in the 1880s, left congressional leaders out, specifically because of the constitutional issue. When the third law passed in 1947, the constitutional argument was not debated seriously.
The constitutional and policy arguments are sketched out pretty well by others, ranging from James Madison to Clinton Rossiter to Akhil Reed Amar. I can get into them in more detail in a future post if people want to debate them. The thing that interests me most is how this argument might actually become relevant.
Consider the hypothetical scenario that opens Chapter 4 of my upcoming book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (and please note that this potentially problematic situation does not relate to the current [Democratic] president and [Republican] Speaker any more than it did to the previous [Republican] president and [Democratic] Speaker, who were in office when I first drafted the chapter):
The United States is deeply divided over the war. Everyone agreed that we needed to fight back when Ruritania attacked our bases, but after two years of intensive combat, things are not going well. Addressing the nation, President Joanna Lewis announces her intention to seek a negotiated settlement. The half of the country that agrees with her breathes a sigh of relief.
The other half boils with rage. Responding to the president, Speaker of the House Peg Wilton says, “We are losing this war—not because our cause is hopeless, but because we have a cowardly commander in chief. We should never surrender to fascist aggression.” “Coward” is a mild epithet compared to what other hawks call President Lewis.
Complicating matters is that a few weeks ago, the vice president suffered a fatal heart attack. President Lewis nominated a candidate to fill the vacancy, but the hawks in Congress have stalled the vote. They are motivated by their distaste for the nominee’s unsurprisingly dovish position on the war, but everyone notices that while the vice presidency is vacant, Speaker Wilton is next in line for the presidency (followed by the president pro tempore of the Senate, and then members of the cabinet, starting with the secretary of state).
As President Lewis arrives at a public event one morning, an assassin detonates a huge bomb, killing the president and dozens of others. In a homemade video produced before the assassination, the bomber decries “the coward Lewis” and announces his intention to kill Lewis so that the stalwart Wilton will become president and continue the war. Within two hours of the assassination, the video has saturated television and the Internet.
The assassin seemingly gets his wish. Wilton condemns the assassination in the most strident terms, obviously, but she takes an oath of office that morning as acting president. Her political position is tenuous. Supporters of the martyred President Lewis blame Speaker Wilton for fueling the rhetoric that led to Lewis’s assassination, and for her role in stalling to keep the vice presidency vacant. In other words, they feel as though the country has just suffered a coup d’état. They latch onto a legal argument that, just hours earlier, had been an academic one: that it is unconstitutional for the succession law to include members of Congress. Wilton’s opponents argue—with the support of several prominent legal experts—that the dovish secretary of state Allen is the legitimate president.
Secretary Allen decides to contest Wilton’s claim to the presidency. He too takes an oath of office as acting president and, without using force, Allen assumes physical control of the White House. “The struggle over our war policy has been ugly, but it’s a political struggle,” he says in a national address from the Oval Office. “In America, we don’t settle political questions by mass murder.”
It has only been twelve hours since the assassination—a shocking and surreal day. No violence has broken out yet, but it feels like only a matter of time before it does. No one is in the mood to compromise, and control of the government and the military hangs in the balance as Allen and Wilton vie for control.
In the rest of the chapter, I concede that if the succession law kicked in and the Speaker took over under peaceful, uncontroversial circumstances, the unconstitutionality of the law would probably never be challenged. The general public would accept the result. Those that did not would either lack standing to challenge the succession law, or (like the secretary of state, who would have standing) would lack the political and personal will to do so.
But in a situation like the one in my opening scenario—involving not just conflicts of interest but conflicting claims to the presidency—the country could be in real trouble. The benefits of Speaker succession, such as they are, do not warrant taking this needless risk. And I say “such as they are,” because the benefits proffered (that the Speaker is a top elected official, representing the whole country, while cabinet members are mere appointees) don’t amount to much in my view. Again, this is not about the current occupants of these offices—party control switches often enough, and indeed has done so just while I have been writing my book.
Whoever is in charge in the White House and the Capitol, Congress should swallow its pride and take its leaders out of the presidential line of succession.
April 7, 2011 at 11:05 pm
Posted in: Constitutional Law, Politics
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Responses (4)
Ken Rhodes - April 9, 2011 at 3:17 pm
I am bothered by an offhand, almost throwaway, line in this post. “Those that did not [accept the result] would either lack standing to challenge the succession law, or …etc”
It bothers me because presidential succession legislation has a single purpose–to fill an elective office. If Congress established an election law that were unconstitutional, a citizen who should be eligible to vote in the election would (presumably) have standing to challenge the law. It is mind-boggling to me that my standing to challenge can be removed by making the law fill the office without an election.
Jason Miller - April 9, 2011 at 7:03 pm
Very interesting topic.
Brian Kalt - April 10, 2011 at 7:49 am
Ken,
I too am troubled at the way standing is restricted in cases like these, and what I perceive as the overuse of the political-question doctrine (which in this case would actually be the bigger barrier). Among my conclusions is that for the good of the country, the Court should be more comfortable getting involved in these cases.
Say what you want about Bush v. Gore, but it is an indication to me that the Court might be more comfortable with that. But a case in which the country is riven in two might be different–if enough institutions and power centers in the federal government have already lined up behind one contender (and that process would be swift), I wouldn’t expect the Court to try to reverse the result.
Timothy Nestved - April 21, 2011 at 4:38 pm
Dear Mr. Kalt,
In a paper out for publication entitled “U.S. Presidential Succession,” (copy at http://www.nestvedllc.com/articles/index.html) there exists a definitive proof the Presidential Succession Act of 1947 (3 U.S.C.) is constitutional with regard to the inclusion of the Speaker of the House and President pro tempore of the Senate in the presidential succession list, as the statute contains the required statements to unambiguously exclude the Speaker and President pro temp from consideration as eligible successors. If the exclusion statements were not present, then the Presidential Succession Act would be unconstitutional as argued most recently by Akhil Reed Amar and Vikram David Amar, as well as by the Continuity of Government Commission (Second Report June 2009).
Having said that, the Presidential Succession Act is actually unconstitutional because it includes an impeachment clause that can exclude potential Executive Branch Officers (e.g., Secretary of State…) from succession by merely being Impeached by the House of Representatives without the required conviction by the Senate. That is, if the House of Representatives could muster enough votes to Impeach each and every Executive Officer in the presidential succession list, there would be no eligible successor.
It is correct, the inclusion of the members of Congress in the succession act (3 U.S.C.) does create the potential for a legal battle over the question of legitimate succession at a most inopportune time, which is precisely the reason the paper “U.S. Presidential Succession” was written. That is, the paper provides at least three definitive proofs that members of Congress are ineligible, and thus, any succession should begin with the Sec. of State, while definitively proving any House Impeachment without the required Senate conviction of an Executive Officer in the presidental succession list does not disqualify or eliminate said Executive Officer from succession. Noting, if the Senate does act with a conviction, then that officer is ineligible.
Regards,
Timothy D. Nestved
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