In my first post I said that my “cliffhangers” range from the merely interesting all the way up to full-blown constitutional crises. My favorite chapter in Constitutional Cliffhangers, Chapter 4, definitely qualifies as a crisis. Here is the opening:
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, John Allen, is the legitimate acting 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, he 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 ten 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.
This is my favorite chapter for many reasons. The first is that I can’t resist the potential drama of the story (a novel is in the works). The second (and my main focus in this post) is that it highlights the interaction between law and politics.
The legal issue here is complicated, but to summarize briefly: 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 arguably not “officers” as the Constitution uses the term. The secretary of state clearly is an officer. (I am guessing the commenters might get into the details more…)
The role of politics here is key. Even though the weight of scholarly opinion is (by my measurement) on the secretary of state’s side here, I concede that the Speaker could assume office without controversy in most cases. 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 — in which the Speaker is of a different party, had a hand in maintaining the vacancy in the vice presidency, and arguably incited the vacancy in the presidency — the secretary of state might make a play for control and the country could be in real trouble.
We cannot be sure that the winner of this struggle would be the side with the stronger constitutional arguments. We can be sure that the struggle itself would shake the foundations of our government.
This odds of this happening might be long, but the stakes are incalculable. On the other side, the benefits of the status quo are minimal. The justification usually offered for Speaker succession (that the Speaker is a top elected official, representing the whole country, while cabinet members are mere appointees) doesn’t amount to much when compared to the potential peril it represents.
Even though this makes it a good candidate for reform from a cost-benefit standpoint, politics again make it hard to see this getting fixed. For various reasons, Congress is better at addressing problems that have already occurred than it is at preventing future ones. Congress is also driven by interests and the “cliffhanger-reform” movement is politically weak, while the “preserve the prestige of the Speaker” movement has a natural constituency at the Capitol.
Law, politics, and the Speaker and secretary of state trying to strangle each other. All of this and more in Constitutional Cliffhangers.
Elliot says:
When does the novel come out?
January 24, 2012, 11:20 amCJColucci says:
During the Nixon administration, the National Lampoon published a piece on the machinations of Transportation Secretary Claude Brinegar, then the last person in the line of succession, to eliminate those ahead of him and assume the Presidency. I learned in a recent obituary that, according to his daughter, he had gotten a kick out of the piece.
January 24, 2012, 11:21 amBlue says:
I dunno. Regardless of the text of the Constitution, everyone in the country in a putative crisis such as this would have grown up in a situation where it was simply assumed that the Speaker of the House was 3rd in succession. It’s difficult for me to see how the Sec of State would ever be seen as a legitimate option. I could see, vis a vis Bush v. Gore, the situation being used to tarnish the legitimacy of the Speaker as president…but that would be the limit of it.
January 24, 2012, 11:32 amChris Rhodes says:
Alternatively worded, Congress sucks even worse at preventing future problems than it does at addressing problems that have already occurred.
January 24, 2012, 11:36 amSean M. says:
Enjoying the posts so far; just wish the Kindle book wasn’t $33!
January 24, 2012, 11:38 amRandall says:
I find this sort of thing fascinating – you’ve convinced me to buy the ebook.
Similar “what if” question: What if the president-elect and vp-elect are killed/assassinated/whatever after the electoral college votes, but before they take office?
January 24, 2012, 11:39 amJust Dropping By says:
This sounds very interesting and I’d love to read the book, but each time I see someone raise the bug-a-boo of the Speaker’s succession to the presidency leading to a party switch, all I can think about is that (1) on multiple occasions, Presidents have appointed Secretaries of State from other parties, thus there’s also a risk (albeit a statistically lower one) of succession by the Secretary leading to a party switch; (2) the SoS’s office is frequently occupied by individuals who would have been unelectable to national political office, whereas the Speaker has at least won a House race and support from a majority of their own party members and thus has more credibility as the “Voice of the American People”; and (3) the SoS’s office is frequently occupied by individuals who have far less in the way of political managerial skills than the Speaker of the House (skills that I think would be very desirable in the situation of suddenly and unexpectedly changing the holder of the office of President). This, of course, is not an argument against the plain text of the Constitution, but most of the articles I’ve read on the subject go beyond the plain text issue and rely very heavily on the threat of party switching.
January 24, 2012, 11:50 amCalderon says:
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.
I’m highly skeptical that no member of the general public would have standing to challenge an invalid succession. As soon as the new “president” signed a law that adversely affected someone’s interest, or made an appointment to a regulatory agency where that person made a decision that adversely affected someone’s interest, then the those members of the general public whose interest were affected would have standing to challenge the succession on the grounds that the law or act was void because it was not signed by the actual president or the regulatory head who took the action was not appointed by the actual president, etc. Maybe in these circumstances the courts would be loathe to intervene and say the dispute was a political question (but, of course, see Bush v. Gore), but certain members of the public would have standing once the “president” did anything.
January 24, 2012, 12:00 pmdw says:
The House of Representatives shall chuse their Speaker and other Officers
but
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.
So the Speaker is an Officer, while the President pro tempore arguably is not.
January 24, 2012, 12:02 pmSykes Five says:
About a hundred years ago, it was customary–to the point of being nearly mandatory–for the President to appoint his main rival within the party as secretary of state; e.g., Woodrow Wilson’s initial secretary of state was William Jennings Bryan. Obama seems to have inherited this tradition.
January 24, 2012, 12:02 pmnunzio says:
As a practical matter, the public would demand a former President to step back in. I’d vote for George H.W. Bush.
January 24, 2012, 12:05 pmathEIst says:
In America, we don’t settle political questions by mass murder.”
HA HA He must have been out sick when the Civil War was discussed in school.
January 24, 2012, 12:25 pmJust Dropping By says:
I agree that the present Obama/Clinton situation is an exception to my point (2) above. However, IIRC, a majority of the post-WW II SoSs never held a national-level elected office before their appointment to the post. (Admittedly, a few individuals in that category, like Powell, could at least claim to have been “national figures” before being appointed, but most, like Albright, Rice, etc., would have been complete unknowns to 95%+ of the population and even people who knew them wouldn’t have thought of them as being “leaders” on a national level.)
January 24, 2012, 12:28 pmathEIst says:
January 24, 2012, 12:30 pmyankee says:
I wonder how a dispute like this could be resolved. Even if the Supreme Court were willing to step in, could it act in time? The lawsuit in Bush v. Gore, which was decided on a super-expedited schedule, lasted nearly three weeks from complaint to final decision. The country can’t go three weeks without a President: what happens when the Secretary of State and the Speaker of the House give conflicting orders to the Combatant Commanders? Would the “political” question really end up being decided by the military?
January 24, 2012, 12:48 pmPersonFromPorlock says:
Not complicated enough. The cherry on top would be if the House majority had elected a non-member as Speaker….
January 24, 2012, 12:51 pmDon C says:
Where power is generally seen to have been transferred, it effectively has been. The statute that everyone would be looking at says that the Speaker is next in line, and in the scenario has already begun assuming power. I think this crisis ends when the Secret Service takes the Secretary of State into custody, most likely before he takes the oath of office.
January 24, 2012, 12:53 pmGeorge says:
The West Wing (I forget which season) had a thread along these lines, when the Vice President had resigned and the President was temporarily incapacitated.
January 24, 2012, 1:11 pmBlue says:
Well, you’d still have the SecDef who could give lawful civilian orders to the military. In the absence of a President, they’d be the top of the chain of command. I suppose you could see the JCOS demurr on an order from SecDef in the face of countervailing demands from two potential presidents…something along the lines of waiting for the USSC to act.
In the end, that’s where the question would land, just like Bush v. Gore, and for the same reasons.
January 24, 2012, 1:32 pmProf. Brian Kalt, guest-blogging says:
For what it’s worth, the chapter gets into a lot of these issues. The big unknown here is public opinion. The secretary of state would have no hope of prevailing if there weren’t a strong political argument accompanying the strong legal one. Maybe the mobs in the streets would wait for the Supreme Court to weigh in, but maybe the Supreme Court would be influenced by the will of the mob, the military, and such. This all points to a need to simply amend the statute, though, and avoid all of this mishegoss.
January 24, 2012, 1:36 pmbyomtov says:
Can the House throw out the Spaker and elect a new one mid-session? That would be even better.
January 24, 2012, 1:53 pmAJK says:
The Speaker is an Officer of the House of Representatives, but not an Officer of the United States. See U.S. Const. art. II sec. 3-4. Only Officers of the United States can be placed in the line of succession (or so the argument goes).
January 24, 2012, 1:58 pmDilan Esper says:
An Officer of the House may be different from an Officer of the United States. (E.g., the members of the Capitol Police force are Officers, but they are not necessarily Officers as the term is used in the Succession Clause.)
January 24, 2012, 2:06 pmdeepelemblues says:
I would expect that in such a situation the military would quietly take over and equally quietly direct that someone bring suit and the Supreme Court rule on it as soon as possible.
Americans are good at acting outside the law and retroactively making it legal, the greatest example being President Lincoln.
January 24, 2012, 2:19 pmMalvolio says:
Military officers are very aware of the chain of command and of the chain of succession. The law says it’s the Speaker, so it’s the Speaker.
So, incidentally, is the Secret Service. If the President and Vice President were dead, the Speaker’s team would hustle him directly to the White House (or, as more likely in such a situation, to the designated Emergency Command Center). If the Secretary of State tried to “occupy” the White House, his own detail would be reluctant to go with him and the guards there (who go by the wonderfully oxymoronic name “Uniformed Secret Service”) wouldn’t let him in.
Military headquarters will typically have a row of photographs on the wall, depicting the unit commander, his superior, his superior, and so on, all the way up to the Secretary of Defense and the President. Just in case.
It would be a mess if the Secretary of Defense maintained that the Secretary of State, and not the Speaker, was acting-president, but the Secretary of State’s own statements and actions would make no impression on the military and little on the Secret Service.
And the Department of State as a whole is weak. It has relatively few employees; its senior staff members (who are mostly presidential appointees themselves) are much less likely to have any institutional loyalty to the Department or its Secretary; and it is largely held in contempt by the other Departments as ineffectual, incompetent, and over-paid.
These are all practical matters, not legal ones, but it’s a safe prediction that if the Secretary of State declared himself acting-president before all three of the guys ahead of him assumed room temperature, he would be promptly escorted from the building.
(Full disclosure: it’s been 20 years since I’ve worked in DC and five more since I worked on succession and Continuity of Government issues, but I’d be surprised if it’s changed much.)
January 24, 2012, 2:26 pmPeter Gerdes says:
An alternative method to minimize the changes of this kind of event is for the senate to ask every cabinet secretary whether they swear to support (and not challenge constitutionally) the order of succession as laid out in the relevant congressional act.
While it wouldn’t render such a challenge impossible being on video swearing that you accept that plan of succession would reduce the changes of a showdown.
—-
I think you fail to appreciate the strong incentives such the emotions in such a situation would create.
Even if people grew up with the assumption that the speaker would take charge a situation where they feel (even in error) that the speaker machinated to gain control to institute their evil policies would motivate them to accept just about any colorable argument in that situation.
Heck, just look at some of the accusations and views that popped up about Bush during his presidency even though (relatively speaking) the nation was fairly united. Even many years into his term many people continued to hold the view that Gore, despite his acceptance of the supreme court ruling, was the true president.
January 24, 2012, 2:27 pmloki13 says:
I make this fearless prediction-
If this exact scenario were to occur, then 90% of the partisan supporters of the Speaker would claim that, of course, their argument is clearly supported by the Constitution.
90% of the partisan supporters of the SoS would claim that, of course, their argument is clearly supported by the Constitution.
Both sides would accuse the other of bad faith and an inability to read and understand the clear words of the Constitution, and say that if the horrible and unconstitiutional precedent of the other side is followed, Hamilton and Madison and Jay will start spinning in their graves, thereby causing the Republic to fall.
January 24, 2012, 2:32 pmRhymes With Right says:
Except, of course, that the President/Speaker may well fire the assassinated president’s SecDef and attempt to appoint a new one (who might even be confirmed in short order by Congress) while the President/SoS might seek to retain the sitting SecDef. Quickly now — who are the commanders in the field to recognize as the legitimate SecDef?
January 24, 2012, 2:36 pmPeter Gerdes says:
Again I think you are applying assumptions that are valid now to a situation which is very different than the one we are in now. Remember, this is a situation where the political temprature in the nation is extremely high and it’s foolish to assume these political views won’t color the actions of the secret service and the military.
Take for instance the hypothetical assassination of the president in this scenario. If the secret service members felt that the speaker had encouraged (or suspected they had a direct hand in) the assassination of the president and the murder of the agents with him they might well have a strong temptation not to support the speaker. Also in such a scenario the president likely would have appointed military commanders to the JCOS who, like her, felt strongly that continued hawkish behavior would just be throwing away the lives of soldiers.
Finally, remember there are other players in this game. Suppose 5 supreme court justices publicly came out to express their view that the Secretary and not the Speaker was the constitutionally recognized president. Wouldn’t that sort of thing at least give the secret service and military pause.
Remember, these sorts of things have happened in all sorts of countries all over the world and we have the same psychological tendencies they do so why would you assume it couldn’t happen here?
January 24, 2012, 2:39 pmRhymes With Right says:
And an interesting compromise possibility — could Congress choose to confirm the heretofore unconfirmed VP nominee as a compromise, with the newly confirmed VP immediately becoming President and appointing an agreed upon member of the other party to be the new VP?
And to make matters more complicated, would the failure to follow through on that agreement constitute an impeachable offense?
January 24, 2012, 2:40 pmMCO says:
According to Bob Woodward in The Final Days, a similar situation could have come to pass. After Agnew resigned, some of the firebrands in Congress (like Bella Abzug) wanted to delay the confirmation of Jerry Ford and impeach Nixon, in order that the democrat Speaker (Carl Albert, IIRC) would become president. In a wise move, the congressional leaders realized that this would seem too much like a coup, and went forward to confirm Ford.
P.S. Who knew that Al Haig had such a subtle grasp of the Constitution.
January 24, 2012, 2:41 pmjf says:
To those who think that it’s a slam-dunk that the Speaker would be legitimized, suppose that there was a sizeable minority who actually think the Speaker is complicit in the assassination… with flimsy but nontrivial evidence (think Vince Foster.)
January 24, 2012, 2:46 pmPeter Gerdes says:
Ohh and I doubt standing means anything in a situation like this one.
Should the members of the supreme court be both legally convinced that the secretary was the constitutional president and politically convinced the speaker’s presidency would be a disaster they would find a way to step in quickly.
Keep in mind we are talking about a situation where the partisans on the side of the secretary will be convinced that the speaker is staging a coup as they are to blame for the president’s assassination. Doesn’t matter if evidence suggests it was a lone crazy the saner supporters of the secretary will let their emotion convince them the speaker’s insult was calculated to induce such a result and the more extreme partisans will allege the speaker was part of a conspiracy to assassinate the president.
I mean surely if the speaker openly shot the president and then tried to assume command the military and secret service wouldn’t accept the speaker’s legitimacy. In the situation described half the country is going to be emotionally convinced that we are in a similar situation and will act accordingly.
January 24, 2012, 2:49 pmCJColucci says:
A reader has referred me to the 1949 Alec Guiness comedy Kind Hearts and Coronets, in which someone very far down the line of succession to a dukedom knocks off those ahead of him, all, apparently, played by Guiness. I’ll have to watch it.
January 24, 2012, 2:50 pmRepeal 16-17 says:
Nice twist. Three people would be vying for the Presidency: Secretary of State, Speaker of the House, or the new Vice President.
Nobody has mentioned that the Presidential Succession Act of 1947 requires that before an officer can become Acting President he must resign from office. You can’t be an officer and Acting President. Doesn’t that mean that we have a paradox? You must be an officer to become Acting President, but to become Acting President you must cease to be an officer.
January 24, 2012, 3:00 pmRhymes With Right says:
Acctually, Haig had the right of it. As SoS, he arguably was in charge at the White House as the senior executive branch official. He was not staking a claim to be president.
January 24, 2012, 3:15 pmPersonFromPorlock says:
Good question. I suppose the opposition would claim it was too late to change Speakers, but then there’s the Lautenberg precedent….
It occurs to me that trial by combat does have its good points.
January 24, 2012, 3:17 pmEvan says:
Guess what? I would. I would want him to be impeached within the hour, but I’d accept him as legitimate Acting President because that’s what the law says. (By the way, I think that’s one reason the Presidential Succession Act requires him to resign as Speaker – so he can’t block his own impeachment.)
(Full disclosure: I’m neither a military nor Secret Service member, nor otherwise associated with any branch of the government.)
January 24, 2012, 3:25 pmCrimso says:
If you’re the person carrying the “football” when all this goes down, whose side do you rush to? Presumably (hopefully!) the military has a protocol for precisely how this occurs. The person they take it to could argue that the military recognizes their authority. IANAL, so I have no idea whether that datum would be a factor in a legal resolution to the issue.
January 24, 2012, 3:35 pmAk Mike says:
Sorry, I just have to follow up on CJColucci’s post about that great National Lampoon article. Unless you were around during that period, you may not realize how close to reality it was that the secretary of transportation would become the president. Someone very clever at the National Lampoon noticed that:
The vice president Spiro Agnew was indicted for corruption and resigned. The speaker of the house, Carl Albert, got a heart attack and died. The secretary of state was Henry Kissinger, who was ineligible to be president because he was born abroad. The attorney general Elliot Richardson was fired in the Saturday Night Massacre. The secretary of commerce, Maurice Stans, died in a fall from a horse. The secretary of agriculture, Earl Butz, had to resign after being caught telling racist jokes. And a few etceteras. Much more interesting times back then.
January 24, 2012, 3:51 pmSykes Five says:
It was the season 4 cliffhanger, extending into the first couple episodes of season 5 (first broadcast 2003). Recall that the program followed the fortunes of a fictitious Democratic White House.
The Vice President had resigned under a cloud. President Bartlett’s first choice as a replacement was his Secretary of State, but it was was clear the Republicans in Congress would not allow this.
While the Vice Presidency was vacant, Bartlett’s daughter was kidnapped by foreign terrorists, causing Bartlett to recuse himself from discharging his duty.
So the Republican Speaker of the House who had prevented the Secretary of State from becoming Vice President exercised the duties of the President during the emergency.
It all worked out pretty well for Bartlett and his party, though he ended up having to settle for a Vice President he would not have chosen.
I do not recall any uncertainty on the program whether the Speaker of the House was actually next in line, though I may have forgot it.
January 24, 2012, 3:52 pmegd says:
The oath of office is traditionally (although not required, constitutionally) administered by the Chief Justice.
Where is the Chief Justice in all of this? Did he administer an oath to one participant and not another? Surely one oath would have more political authority than the other, simply by bearing the stamp of approval from the Supreme Court.
January 24, 2012, 3:55 pmProf. Brian Kalt, guest-blogging says:
Great point–I address it in the book.
January 24, 2012, 3:58 pmBlue says:
That’s where I don’t agree with you.
Virtually all of the supporters of the Speaker will support his claim…but that will not be the case with Sec. State advancing a novel claim to the office. If a third to a half of those nominally in favor of the Sec. State politically are unwilling to advance a highly colorable claim ain his favor, the Speaker has an overwheming support in his corner. That can never be true for the Sec. of State.
January 24, 2012, 4:01 pmBlue says:
LBJ had the oath administered on the flight back to DC.
January 24, 2012, 4:03 pmPaulB says:
egd,
VPs who become president due to the death of their predecessor are rarely in a position to take the oath of office from the Chief Justice. As Blue said, LBJ took the oath of office from a District Court judge on the way back to DC, while Coolidge took the oath from his father while on vacation when Harding died.
January 24, 2012, 4:20 pmToto says:
Same here; the subject is fascinating, but the price is a bit obnoxious.
January 24, 2012, 4:27 pmloki13 says:
Really? Think of how polarized thing are now. Imagine Obama wins another term. Clinton is still SoS. Obama is pushing something that is incredibly popular with his constituents, and newly-minted Speaker of the House Cantor vehemently opposes, using extreme rhetoric. Meanwhile, VP Biden chokes to death while changing the feet that he puts in his mouth. Congress refuses to let any nominee for VP get through.
Play out the same scenario. Not too hard to imagine. Also not too hard to imagine the reverse (GOP President etc.).
January 24, 2012, 4:30 pmBruce Boyden says:
Paralleling “the stalwart Wilton,” I take it he does so with a press conference in which he announces, “I’m in charge here.”
http://cnn.com/video/data/2.0/video/politics/2010/02/20/sot.haig.im.in.charge.cnn.html
January 24, 2012, 4:53 pmPandaemoni says:
I never understood what the flap was over Haig…what he said was:
“As of now, I am in control here, in the White House, pending return of the Vice President and in close touch with him. If something came up, I would check with him, of course.”
January 24, 2012, 5:04 pmDave N. says:
Actually, I checked it out (via the ever indispensible Wikipedia).
Prior to Hillary Clinton, the last time a former Presidential candidate was named Secretary of State was in 1921, when Charles Evan Hughes (who almost beat Woodrow Wilson in 1916) became Secretary of State under Warren Harding.
From the adoption until of the Constitution until 1925, the rule seemed to be that the Secretary of State at the change of Administrations by election was a former Presidential candidate of some caliber or another.
The only exceptions to this were John Forsyth, whom President Van Buren retained from President Jackson’s cabinet; John Clayton; Hamilton Fish; William Evarts; and James G. Blaine. While none of those four ran for President, all of them served in the U.S. Senate before becoming Secretary of State, except for Evarts, and he became a Senator afterward.
Blaine subsequently was the Republican nominee for President in 1884 — and later served again as Secretary of State under President Harrison.
January 24, 2012, 5:05 pmWaldo says:
Speaking as a history major, I’ve got my money on the guy who’s supported by the guys with guns in and around Washington D.C.
As a lawyer, one other legal issue seems to arise. If you determine that the Speaker is constitutionally disqualified, do you then have an issue as to whether the rest of the Presidential Succession Act is void for non-severability of the unconstitutional part?
January 24, 2012, 5:23 pmBlue says:
The country isn’t divided 50/50, really. The Sec. State in this scenario loses the support of many moderate voters. That’s not to say there wouldn’t be a hard core of 30, 35 percent who see the Speaker as illegitimate…but the USSC (and military, if it comes down to it) would follow the previously agreed upon bargain rather than the novel Sec State claim.
January 24, 2012, 5:33 pmDave N. says:
I remember there being a similar plot in a novel I read 30 or so years ago. In the novel, if I remember the plot correctly, the newly elected President is blinded in an assassination attempt at the Capitol, while giving a speech to a Joint Session of Congress. The Speaker is killed in the initial terrorist attack. The President Pro Tem of the Senate is 103 or so and crazy as a bedbug and survies unscathed.
So part of the cabinet wants to invoke the 25th Amendment because they are concerned that the newly blind President cannot fully engage in his duties.
Then the Vice President dies as the result of an undetected injury from the initial terrorist attack.
Meanwhile, the recently defeated one-term President gets the line of succession modified so that the most recent Constitutionally eligible former President is placed in between the Speaker and the President Pro Tem.
The batshit crazy President Pro Tem argues that the line of succession cannot be modified that way and if the President is removed via the 25th Amendment he will become President and can nuke the Soviet Union or whatever.
Alls well that ends well in the novel, since by happy coincidence the person defeated for the nomination by the now blind President is a member of the House — and so he is elected Speaker and then becomes President when the blind President resigns.
So the bad novel has already been written.
By the way, I think Loki13′s analysis is correct on the merits of the discussion.
January 24, 2012, 5:35 pmBob from Ohio says:
He was not liked, not by the liberals nor by the other people in the Administration.
So, as said during Watergate, he was left twisting in the wind.
January 24, 2012, 5:38 pmRich Rostrom says:
Dave N. says: the Secretary of State at the change of Administrations by election was a former Presidential candidate of some caliber or another.
Does this mean – the Secretary of State appointed by a newly elected President?
Because your list of exceptions omits William Seward. It is true that Seward was a candidate for the Republican nomination in 1860, before being appointed Secretary of State by Lincoln. But Blaine was a candidate for the nomination in 1876, and again in 1880, before he was appointed Secretary by Garfield.
I would also note that James Madison, James Monroe, and John Quincy Adams were all future, not former candidates when appointed. Also James Buchanan. On the other hand, William Marcy (appointed by Pierce) was never a candidate.
January 24, 2012, 7:02 pmSyd Henderson says:
Although Hughes may have been the last former presidential candidate who became Secretary of State at a change of administration, Edmund Muskie became Secretary of State toward the end of the Carter administration.
January 24, 2012, 7:12 pmRich Rostrom says:
Just another evil thought to make the crisis scenario more plausible:
The US has gone to war against Pastafarian terrorism and governments supporting it under President Morton, a Federalist. The war has bogged down.
The Progressive Party has gained control of both Houses of Congress. Rep. Humboldt (Prog-OH), who opposes the war, becomes Speaker. Humboldt has a record of relative friendship toward Pastafarianism, and criticism of what he calls Pastaphobia. Most Americans are much less tolerant, including all Federalists and a sizable minority of Progressives. However, Humboldt is the unquestioned leader of House Progressives, and they elected him Speaker anyway. In recent weeks, though, he has made statements that would have prevented his election – over-the-top comments about war profiteers, alleged US atrocities, and so on, which clearly indicate that he would give up the war at once if he had the power. There are rumors that his own caucus is about to remove him as Speaker.
Vice President Bindler has a fatal heart attack.
Morton nominates General Hawkblood for Vice President; the Progressive majority in the Senate balks.
While Morton and the Senate spar over Hawkblood’s nomination, Pastafarian terrorists assassinate Morton.
Now the question is – shall the Presidency go to one who will wield it as preferred by foreigners who assassinated the incumbent?
In other words, shall the assassins benefit from their act?
January 24, 2012, 7:38 pmJoeJP says:
The Speaker of The House (John Goodman) became acting president on West Wing, but they sorta chickened out with the plot line, nothing too interesting happening.
January 24, 2012, 7:40 pmJoe says:
If we want to be pedantic, Clause 6 allows the “successor” to only ACT as president, not be sworn in as such, until another president is elected.
January 24, 2012, 8:40 pmRhymes With Right says:
That looks way too much like military control of the civilian government to me, and contrary to the Constitutional order of things.
January 24, 2012, 9:05 pmRhymes With Right says:
Except for the fact that in such situations the oath has not always been administered by the Chief Justice.
William Cranch, Chief Judge of U.S. Circuit Court, administered the oath to both John Tyler and Millard Fillmore.
John R. Brady, Justice of the New York State Supreme Court, administered the oath to Chester A. Arthur.
John R. Hazel, U.S. District Judge for Western District of New York, administered the oath to Teddy Roosevelt.
John C. Coolidge, his father, a Notary Public, administered the oath to Calvin Coolidge.
Sarah T. Hughes, U.S. District Judge, Northern District of Texas, administered the oath to John F. Kennedy.
So the reality is that in such instances it has been a readily available judge administering the oath to the new president, which means that the who isn’t terribly relevant — especially if one or both of the putative new presidents is away from Washington. Indeed, imagine if the SoS is not in Washington, but is instead abroad on a diplomatic mission and is sworn in by the US ambassador to whatever country he is visiting — or a US judge who happens to be in that country at the time (either officially or on vacation). Or might a foreign judge take validly administer the oath?
January 24, 2012, 9:16 pmRhymes With Right says:
Except for the fact that the practice and court precedent recognize that said successor has, in fact, assumed the office for the duration of the current term and is, for all intents and purposes, the President of the United States. That distinction is therefore one without distinction.
January 24, 2012, 9:44 pmMalvolio says:
That was Full Disclosure by William Safire.
January 24, 2012, 9:46 pmMalvolio says:
That was Full Disclosure (pub. 1978) by William Safire.
I don’t think it has to even be a judge, but it certainly (imho) has to be someone subject to US jurisdiction (a citizen or at least someone inside the country), so he himself can swear under penalty of perjury that the oath was taken.
It would seem like a coup because it was a coup. I can’t think Albert would have been stupid enough to take the job even if anyone was treasonous enough to offer it to him.
January 24, 2012, 9:51 pmCornellian says:
Wasn’t there any argument in Congress when the statute was enacted over whether the Speaker was an “officer” for constitutional succession purposes?
January 24, 2012, 10:47 pmLou Gots says:
Yes.
At that moment, the most important lawyer in the country would be a JAG. What would I advise my commander? In the absence of a judicial determination that the existing Presidential Succession Act were unconstitutional (even though it may very well be), go with the law as written. Oaths would be kept.
January 24, 2012, 11:32 pmJohn Herbison says:
What about Edmund Muskie, who ran for the Democratic nomination for President in 1972 and served as Secretary of State in 1980-81?
January 24, 2012, 11:53 pmBMan says:
Years earlier Haig was Nixon’s Chief of Staff when a pending impeachment caused the President’s behavior to be edgier than usual. Haig quietly notified the SecDef to check with him before executing any unusual orders from the Commander in Chief. Haig was on shakier Constitutional ground then, but showed good judgment. Incidentally, when Nixon resigned it was to SoS Henry the K, himself ineligible by birth to be President.
January 25, 2012, 7:58 amMasturbatin' Pete says:
Everyone here who’s speculating about what the Secret Service would do… they’d do what the Secretary of the Treasury told them to do. So there’s that wrinkle.
January 25, 2012, 8:25 amSteve says:
Yeah, except you left out what he said right before that, which was “Constitutionally, gentlemen, you have the President, the Vice President, and the Secretary of State, in that order.”
January 25, 2012, 11:19 amloki13 says:
Stepping back for a minute, the problem with the succession statute is as follows:
1. There is a tension between having a priority in succession between the following-
a. People in government with various levels of accountability/hierarchy (you want someone in the “know” so they can hit the ground running and someone with at least a little national prominence).
b. Someone who has at least a little “popular legitimacy” (who has been elected, although it is an interesting question as to how much legitimacy is conferred by being elected in a state or district, and how “election” in the national legislature is a popular ratification).
c. Someone who is in the executive branch and, theoretically at least, agree with the prior President’s policies.
Now, all of this is putting aside the constitutional (“officer”) issue.
Thankfully, we haven’t had to put this to the test. Now, while many see this as an academic exercise, here’s why it might someday matter.
In a two-party system, there will be times of incredible political partisanship. Because of this, there will also be times when the person who is next in line for succession will have wildly divergent views from the current office holder. Theoretically, this shouldn’t matter. But it does. Again, compare a theoretical Cantor and Obama.
While it shouldn’t matter (and doesn’t to people like Blue), I can see some pretty deep divisions in this country if, after the death of a Biden, Congress refuses to let a new VP be appointed. It’s a recipe for partisan disaster. And you can reverse this if you like (Pres. Rubio and Speaker Pelosi).
January 25, 2012, 11:34 amVisitor Again says:
Not quite. The oath was administered by U.S. District Court Judge Sarah Hughes in the presidential plane but while it was still on the ground at Love Field in Dallas. Judge Hughes did not fly to Washington, D.C.
January 25, 2012, 4:10 pmJeffDG says:
Yeah…that’s pretty steep for an eBook
January 25, 2012, 4:12 pmJeffDG says:
No, they’d do what the Secretary of Homeland Security told them to do. The Secret Service was moved to DHS quite some time ago.
January 25, 2012, 4:14 pmLaura(southernxyl) says:
I realize that I am stunningly idealistic, but IDEALLY, Peg Wilton would say that as bad as the current crisis is, it is nothing to what would happen to this country if we began to allow assassins to choose our presidents. And to abort this disastrous precedent and guarantee as best she could that it would never happen again, she would allow the succession to pass over to her to the Secretary of State. As much as it pains her to do so. And continue to offer advice, asked-for or not, from her current position.
This would require dedication to country to overtake personal ambition. Does that ever happen?
January 25, 2012, 6:14 pmMike Keenan says:
Boehner or Clinton. Here’s hoping Panetta steps in….
January 25, 2012, 7:48 pmChris W. says:
Somewhat similar situation in two of Tom Clancy’s books. At the end of Debt of Honor the VP resigns amid rape allegations, and Jack Ryan is appointed to replace him. Jack is confirmed by a voice vote of a joint session, just before a plane strikes the Capitol Building. Jack and his family are pretty much the only ones who escape alive, and Jack is immediately sworn in.
The situation continues in Executive Orders, where one of the old VP’s staffers sneaks into the deceased SecState’s office and steals the resignation letter. The old VP publicly claims that he tried to submit his resignation, but there was a technical wording error so the letter of resignation needed to be reformatted. Since the resignation was not valid, the vice presidency was never truly vacant, and Jack Ryan isn’t really the president.
January 25, 2012, 8:43 pmDave N. says:
Thank you. However, upon review and reflection, I realize I confused and then conflated the plots of two different political thrillers. You are right that Full Disclosure is one of them. The other was Line of Succession by Brian Garfield. I ended up combining the two plots into my narrative.
With respect to the Secretaries of State being Presidential candidates. My bad. I did mix Jefferson, Madison, Monroe, J.Q. Adams, and Buchanan(!) with the list of prior Presidential candidates who subsequently became Secretaries of State. And I was listing ONLY the Secretary of State at the beginning of each Administration — not every Secretary of State.
By the same token, I did not include Edmund Muskie because he was not President Carter’s first Secretary of State.
January 25, 2012, 9:09 pmMilhouse says:
But the law doesn’t say that; an unconstitutional law is no law at all. Many military officers may mistakenly think it’s the law, and so will follow it, but those who are aware of the problem, and are loyal to their oaths, will not.
January 26, 2012, 12:14 amLeonidas says:
Apologies if someone has already mentioned it, but the reason the Speaker is not an Officer of the US is the Incompatability Clause.
“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office”
No civil office under the authority of the US while serving as an elected Senator or Representative, that is pretty clear. They are no more a valid officer than the CEO of a company is an officer for succession purposes.
January 26, 2012, 6:51 amharmon says:
I assume that the Succession Act was passed by the Congress & signed into law by the President. Therefore, the two branches have made it clear that they think that the Speaker (& the president pro tem) are officers within the meaning of the Succession Clause.
In a time of crisis, the Supremes are not going to overturn that Constitutional interpretation, even assuming that they take jurisdiction – which they won’t, unless it’s to confirm the Speaker in his new office.
January 26, 2012, 11:45 amRhymes With Right says:
And in terms of the structure of the Executive Branch, he is arguably correct. Speaker and President Pro Tem have no Executive Branch authority — but VP and heads of Executive departments do. SoS is, by custom, the senior member of cabinet.
January 26, 2012, 9:58 pmToby says:
This is an interesting converation, and one that puts me in mind of the Rota system of Kievan Rus. Rota continued in its amazing complexity until the rise of Muscovy…
January 27, 2012, 3:03 pmhttp://en.wikipedia.org/wiki/Rota_system