Constitutional Law

A Presidential Succession Nightmare

By Jack Goldsmith, Ben Miller-Gootnick
Wednesday, March 25, 2020, 1:38 PM

“Before Virus Outbreak, a Cascade of Warnings Went Unheeded,” declared the New York Times headline. The story concerned an October 2019 report by the Department of Health and Human Services that laid out an influenza pandemic scenario much like the one that is now upon us. The report made clear that our current situation was foreseeable and indeed was foreseen. And yet the government did not take steps before the crisis to prepare in ways that could have mitigated the damage.

An analogous situation could soon arise with the Presidential Succession Act of 1947, now codified at 3 U.S.C. § 19. Imagine, as it is easy to do, that President Trump and Vice President Pence die or are temporarily unable to discharge the powers and duties of the Office of the President due to infection by the coronavirus. The 1947 statute says that in that circumstance, Speaker of the House Nancy Pelosi “shall … act as President” after resigning as speaker and from Congress. Pelosi would wield all the powers of the presidency. Consistent with the law, she could issue whatever executive orders she wanted, fire disfavored political appointees, and in general direct the executive branch as she pleased.

Whether this scenario is a nightmare or salvation may seem to depend on one’s political outlook. But in truth it’s a nightmare scenario for all Americans because there is a powerful (though not airtight) argument that the Succession Act’s placement of the speaker in the line of presidential succession (and after her, the president pro tempore of the Senate) is contrary to the Constitution’s Succession Clause. That clause states that only an “Officer” may succeed and act as president. Most of the pertinent commentary maintains that the term “Officer” here does not include members of Congress. If that is right, Pelosi could not constitutionally “act as President,” even though the statute says she can.

But who would decide the controversy? Imagine that Pelosi declares herself acting president after Trump and Pence become incapacitated. And imagine that, at the same time, Secretary of State Mike Pompeo (the executive officer next in line under the statute) declares himself acting president on the basis of a legal opinion from Attorney General William Barr proclaiming legislative succession to the presidency unconstitutional. How would the matter be resolved? The answer, as we discuss below, is unclear. The nation could thus be deeply divided, in a hard-to-resolve way, on the very basic question: Who is the (acting) president of the United States? This nightmare scenario is at least as plausible as the much-discussed ones about irregularities in the 2020 presidential election.

The analogy to the Health and Human Services report on pandemics is that the constitutional and practical problems with legislative succession have long been known and Congress has often been urged to fix them, especially in recent years. But just as with the pandemic threat response, the threat posed by uncertainty in presidential succession seemed distant, and the preparation costs too high. Yet now here we are.

Historical Background

Article II’s Succession Clause provides that in case of a president’s removal, death, resignation or incapacity, the office’s powers “shall devolve on the Vice President.” And if both the president and vice president cannot serve, “Congress may by Law . . . declar[e] what Officer shall then act as President, and such Officer shall act accordingly until the Disability be removed, or a President shall be elected.” The clause does not define “Officer.”

The First Congress vigorously debated whether the speaker of the House and president pro tempore of the Senate qualified as “Officers” under the Succession Clause. It deadlocked on the issue, and the Second Congress took it up again. “Behind the constitutional arguments [in both Congresses] loomed the political fact that the Secretary of State was Thomas Jefferson,” David Currie has noted. The House favored Jefferson and wanted him next in line. The Senate, dominated by Hamiltonians who despised Jefferson, wanted its president pro tempore to succeed the president and vice president. The Senate won out in the Presidential Succession Act of 1792. The act provided that the president pro tempore and then the speaker would succeed the vice president.

Congress enacted a new succession statute in 1886. It had been considering changes to the 1792 statute for a while but was moved to act when President James A. Garfield died 79 days after he was shot by an assassin and was succeeded by Chester A. Arthur. The episode revealed problems with the 1792 act, since, according to the Congressional Research Service, “the offices of Speaker and President Pro Tempore were vacant throughout the President’s illness, due to the fact that the House elected in 1880 had yet to convene, and the Senate had been unable to elect a President Pro Tempore because of partisan strife.” The Succession Act of 1886 sought to “insure the line of succession and guarantee that potential successors would be of the same party as the deceased incumbent.” It eliminated the president pro tempore and speaker in the succession order and substituted the president’s Cabinet, ordered by age of department.

The 1886 act governed until 1947. President Harry Truman believed that legislative leaders who enjoyed an electoral mandate, rather than Cabinet officers who did not, should be first in presidential succession. Truman urged this view on Congress. And his acting attorney general, Douglas McGregor, wrote a letter to the chairman of the House Judiciary Committee that concluded the proposal was constitutional because members of Congress were “Officers” under the Succession Clause. Congress subsequently enacted the Presidential Succession Act of 1947, which placed the speaker and the president pro tempore before Cabinet officers in the succession order. This is the statute that governs today.

The 25th Amendment, ratified in 1967, empowers the president to nominate a vice president when the office becomes vacant, and for Congress to approve the nomination by simple majority vote. The amendment took a bit of pressure off the succession statute since it makes somewhat less likely—but far from impossible—a double vacancy atop the executive branch.

Constitutional Arguments

We do not attempt here to resolve the constitutional controversy over the meaning of “Officer” under the Succession Clause. It is enough for our purposes to show that the matter is genuinely contested and that there is a powerful argument that legislative succession is unconstitutional.

Serious constitutional questions about legislative succession have been raised since the Founding. But contemporary debates on the question began with Newt Gingrich’s apparently frequent claim, when he was speaker of the House in the 1990s, that he was two heartbeats away from the presidency. Akhil and Vikram Amar responded with an article making the case that legislative succession was unconstitutional.

The Amars argue that the term “Officers” is predominantly used in the Constitution to mean executive officials, that evidence from the Philadelphia Convention confirms this view, and that James Madison maintained that legislative succession was unconstitutional. They acknowledge that the textual case, “while forceful, is not a slam dunk,” since the Constitution twice uses “Officers” to refer to legislative officials. But this argument proves too much, they claim, since it would allow Congress to include state officials (also referred to in the Constitution as “Officers”) in the presidential line of succession.

The Amars bolster their position with structural arguments, only some of which we briefly summarize. First, the Incompatibility Clause prohibits a member of Congress from serving in the executive branch, but the Succession Clause requires the succeeding official to retain his or her seat to “act as President.” Second, the Impeachment Clauses in the Constitution are drafted to avoid conflicts of interest, but legislative succession to the presidency creates a clear conflict of interest during impeachment proceedings (as Jesse Wegman noted during the recent impeachment episode). Third, the Electoral College model in the Constitution is in tension with Congress effectively choosing who is president.

John Manning had the best response to the Amars. Manning does not argue that legislative succession is definitely constitutional but, rather, suggests reasons “to hesitate before declaring unconstitutional Congress’s longstanding (but not unbroken) practice of having legislative ‘Officers’ in the line of succession.” He points out weaknesses in their textual argument. He maintains that the structural arguments were stronger but far from decisive. He insists that the Second Congress’s apparent assumption that legislative succession was constitutional must influence the reading of the Succession Clause (but, again, is not conclusive). And Manning concludes that the constitutional question “is debatable, and Congress’ reasonable implementation of ambiguous language in the Succession Clause should be respected.”

The constitutional debate about presidential succession took on fresh urgency after 9/11. “The events of September 11, 2001 and the prospect of a ‘decapitation’ of the U.S. government by an act of mass terrorism have led to a reexamination of many previously long-settled elements of presidential succession and continuity of government on the federal level,” noted the Congressional Research Service. Congress had two hearings on the matter in the 2000s. Five of the six witnesses across the hearings raised questions about the constitutionality of legislative succession.

A bipartisan Continuity of Government Commission, sponsored by the Brookings Institution and the American Enterprise Institute, analyzed and reported on presidential succession issues in 2009. The bipartisan commission was chaired by former Senators Alan Simpson (R-Wyo.) and David Pryor (D-Ark.). Its members were Philip Bobbitt, Kenneth Duberstein, Thomas Foley, Charles Fried, Martin Frost, Newt Gingrich, James Ho, Jamie Gorelick, Fred Ikle, Max Kampelman, Nicholas Katzenbach, Robert Katzmann, Lynn Martin, Kweisi Mfume, Robert Michel and Donna Shalala. Norman Ornstein and Thomas Mann served as senior counselors.

The commission concluded that there “are serious policy and constitutional objections to having Congressional leaders in the line of succession.” It stated that “Officers” in the Succession Clause “almost certainly refers to executive branch officials” and noted that structural considerations “make it difficult for Congressional leaders to assume a position in the executive branch.” The main policy objection it identified was that a “political zealot might seek to change the party in the executive branch with a single attack,” or a “freak accident might lead to a sudden change in party” that controlled the presidency. It added that “if a Congressional leader not from the President’s party were to assume the presidency, it could lead to a destabilizing change of party for the federal government.” As a result of these factors, the commission recommended (among other things) removing congressional leaders from the statutory line of succession.

What If

Before the destabilizing change of party occurred, there would almost certainly be a much more destabilizing fight in real time over the constitutionality of the speaker’s claim to be acting president.

Return to the original scenario: Trump and Pence are incapacitated or dead. None of the three succession statutes has ever been invoked, so we don’t know what the succession process looks like. It is not clear, for example, whether a president’s duty under Article II to take an oath “[b]efore he enter on the Execution of his Office” applies to someone deemed to “act as President” under the Succession Clause and statute (emphasis added). The evidence from practice under the 25th Amendment, however, is suggestive, since the three times that vice presidents have assumed temporary power, they apparently did not take the oath.

But assume that the speaker of the House and the secretary of state both think an oath is required. The oath is usually, but under the Constitution need not be, performed by the chief justice. So imagine that Pelosi resigns from Congress and gets Jerry Nadler, chair of the House Judiciary Committee, to administer the oath, accompanied by a legal opinion from the House general counsel that concludes she is acting president under the succession statute. And imagine that Secretary of State Pompeo gets Attorney General Barr to perform the oath for him, and that Barr provides a supportive legal opinion—one that disavowed the analysis in McGregor’s 1947 letter. (We will ignore severability complications.)

Brian Kalt, in his book Constitutional Cliffhangers, says that in this very situation, “[t]he Speaker would have the statute and well-settled expectations on her side; the secretary of state would have the stronger constitutional arguments and all the policy arguments … —a resistible force versus a moveable object.” That is a plausible assessment, but how would it play out?

The answer would of course depend on the details, such as, for example, whether it looked like the president or vice president or both would soon recover, or whether they both died within a relatively short period, making it impossible to nominate and confirm a new vice president. But whatever the details, we shouldn’t expect the federal courts to easily resolve the situation. When a plaintiff brought an otherwise justiciable claim, federal courts might well (as Steven Calabresi argued) deem the matter a political question. It would take time to brief and argue the matter, even on an emergency schedule. The case would quickly make its way to the Supreme Court, and a lower court might enjoin one side or the other in the interim. All of this would take at least many days, probably much longer, with all the attendant interim uncertainty about who is acting president. The Supreme Court might feel enormous pressure to decide the case on the merits to help alleviate a constitutional crisis, as it apparently did in Bush v. Gore. Or it might want to avoid anything akin to Bush v. Gore in our more polarized era—especially if it could not reach a unanimous or near-unanimous decision on the merits.

If the matter is left to the political process, the secretary of state would appear to have the practical advantage over the speaker of the House, simply because he is in the executive branch and would (in the imagined scenario) have the backing of the chief legal officer of the executive branch. (The matter is more complex, of course, since if Pelosi is in fact acting president she can overrule Barr’s legal opinion, and then fire him for good measure—one of many potential chicken-and-egg problems here.) There are all sorts of convoluted and hard-to-predict ways this could play out, some of which Kalt canvasses.

Of course, it is also possible that one side stands down. Perhaps Pelosi would refuse to resign and not seek to be acting president because she concludes that the statute may be unconstitutional and that following the statute in the midst of a historic health and economic crisis would be imprudent. Or perhaps Barr would put aside his long-standing views about the sharp separation between the executive branch and Congress and rule that legislative succession is constitutional. Maybe, as Trump and Pence grew sick, Pelosi and Pompeo could quietly work out an arrangement that is best for the country.

There is an interesting precursor to such cooperation. On October 5, 1973, at the height of the Watergate scandal, Vice President Spiro Agnew resigned. What followed was a 58-day period in which Nixon was under enormous pressure to resign but Gerald Ford had not yet been confirmed as vice president. House Speaker Carl Albert was next in line for succession, and also at the time presiding over impeachment proceedings. To prevent the presidency from going to the opposite party, Albert considered resigning and encouraging the Democratic-controlled House to elect Gerald Ford, then a member of Congress, as speaker so that he could become president under the Succession Act. (While it is clear that Albert considered resigning, he also made plans to assume the acting presidency; and nowhere in this episode have we found any mention of constitutional problems with the succession statute.)

But in today’s hyperpolarized environment, we cannot, and should not, assume restraint or cooperation by anyone. It seems more likely that we would have dueling acting presidents issuing dueling commands; many nonpolitical executive branch officials abiding by the commands of political appointees who would presumably (but not necessarily) follow Pompeo’s orders, but many other non-political officials who would follow Pelosi’s commands; and dueling mobs of pundits and citizens, all claiming with certainty to know the right answer. This is clearly the opposite of what any rational succession regime should aim to ensure: certainty and continuity in the functioning of government. It would be a disaster for the country.

The only way to resolve the uncertainty about the constitutionality of legislative succession in advance of a crisis is to adopt the commission’s proposal to remove congressional leaders from the statutory line of succession—perhaps with a five-year delay before it becomes operative so that no one will know which party potentially benefits. (We are not saying that the Constitution compels this result. But this is the only way to ensure that a potentially debilitating fight about legislative succession does not occur.) It is very hard to imagine this happening in the current environment. But just as we will surely better prepare for the next pandemic after suffering through the current one, we should better prepare for a double vacancy atop the executive branch if we are lucky enough to dodge the bullet this time round.

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