Fixing Presidential Succession

We should take Congressional officers out of the line of succession.

Doug Mataconis addressed “The Problem Of Octogenarians In The Presidential Line Of Succession” yesterday. While largely theoretical—the people behind the Vice President in the succession order only come into play in a catastrophic event that wipes out several people nearly simultaneously—it makes no sense for the Presidency to be handed to a random Senator whose only virtue is having hung around too long.

As Doug noted, there are legitimate questions as to whether the devolution the Chief Executive to a member of the Legislative branch is even Constitutional. Under our system, there’s no way to get a definitive ruling on that until a Speaker or President Pro Tempore actually becomes President and a suit is filed. One suspects that, under those circumstances, the Supreme Court would be exceedingly unlikely to throw the country in further turmoil and would therefore punt it as a “political question” and refuse to rule.

Beyond the questions of age and Constitutionality, though, there’s simply no way the current system reflects the will of the voters. Additionally, it creates an epic conflict of interest.

Let’s posit a not-incredibly-far-fetched scenario wherein Democrats take control of the Congress after the November elections and impeach President Trump. Arguably, any case stemming from the 2016 campaign would also implicate Vice President Mike Pence. It would be quite bizarre for a Speaker Nancy Pelosi to become President in that scenario. Further, the prospect of a President Pelosi would make it even harder to enough Republican Senators to reach the supermajority threshold to vote their conscience.

And, while Democrats might argue this would be just deserts given that Hillary Clinton not only received nearly three million more popular votes than Trump in 2016 but the impeachment involved foreign interference in the election, the shoe could easily be on the other foot. Imagine if a plane crash or assassination plot simultaneously took out Barack Obama and Joe Biden in 2013. How would you have felt about four years of President John Boehner? It would have been a travesty.

In its original form, the Constitution provided that the President be the winner of the Electoral College and the runner-up would become his Vice President. Once formal political parties entered the mix, this was recognized as untenable and we passed the 12th Amendment to ensure the Presidency wouldn’t switch parties in the event of the death or impeachment of a President.

The original system had another quirk that seems unfathomable in hindsight: Once a Vice President moved up to fill a Presidential vacancy, the Vice Presidency was simply left vacant until the next Presidential inauguration. Numerous times, then, we were one heart attack or assassin’s bullet away from the Speaker of the House taking over the White House. We finally remedied that flaw with the 25th Amendment in 1967.

It seems rather obvious that we need a process in place where someone who will support something like the policy platform the winner of the most recent Presidential election campaigned on will hold the office until the next election. Congress could pass a new law designating which cabinet posts follow the Vice President in the line of succession; currently, it’s done by the order in which the post or its antecedent was first established. Personally, I’d prefer to adhere to separation of powers and give that authority to the President himself, perhaps limited by law to cabinet secretaries who had been confirmed by the Senate.

Yes, it would be odd to have a President who received not a single vote from a single American. But we had an unelected President and Vice President simultaneously within my memory. Gerald Ford became President after the resignation of Vice President Spiro Agnew and then President after the resignation of President Richard Nixon. Rockefeller then moved up to fill Ford’s spot. It’s true that Ford was at least Republican Minority Leader at the time of his selection as Vice President; but there’s no Constitutional requirement that a current elected official be chosen.

FILED UNDER: *FEATURED, Presidency, Twenty-Fifth Amendment, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Ideally, of course, this is something that would be addressed by the Constitution rather than via legislation.

    As I noted in a comment responding to Steven Taylor on my post, this is an issue that was supposed to have been covered by the 25th Amendment but the drafters could not reach an agreement on what to do about the issue so they largely left it out and left it to Congress to handle succession beyond the Vice-President. As a result we’re stuck with the Presidential Succession Act of 1947 which added the Speaker and President Pro Temp into a line of succession that, from 1866 forward, had included only Cabinet Officers starting with the Secretary of State. As I understand it, at least part of the reason for the change is that Harry Truman wanted to include Sam Rayburn, who happened to be a poker buddy of his, in the line of succession.

    As I noted to Steven, the Constitutional problems with the 1947 law set up the possibility of a Constitutional crisis in the case of a national emergency. For example, let’s say a POTUS and VPOTUS both die and the Speaker, who happens to be a member of a different party, assumes the Presidency pursuant to the act. Theoretically at least, this could lead members of the Presidents cabinet to file a lawsuit alleging that including legislative officers in the line of succession is unconstitutional, thus questioning the authority of the new President to act at a time of national crisis.

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  2. If we are going to propose a solution that requires amending the constitution–then let’s create a system of early elections to fill the slot for the remainder of the term.

    Yes, it would be odd to have a President who received not a single vote from a single American. But we had an unelected President and Vice President simultaneously within my memory.

    Yes, but Ford at least had been an elected official.

    A plan that limits the presidency to cabinet officials could have given us a President Rex Tillerson.

    Side note: the 12th Amendment was not a response to the rise of parties (which was still in process at the time). It was because the Framers screwed up by giving the electors two votes each and making the VP the second place winner without figuring out in advance that that could lead to a tie, as happened in 1800. It was a basic design flaw.

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  3. gVOR08 says:

    Given that your concern is driven not by concern for an accident or hostile action taking out the prez and veep, but by the possibility that Trump and Pence might be more or less simultaneously impeached for acts of venality up to treason (in the vernacular usage), I’m failing to see why it’s unreasonable to think succession should pass to someone other than their appointees.

    If we get these bustards impeached, why do we want a continuation of their policies?

    There is some validity to feeling the prospect of a Dem Speaker taking over would prevent Senate GOPs from voting their entirely hypothetical consciences. But they won’t impeach in any case unless the acts are so egregious that the public demands it.

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  4. James Joyner says:

    @Steven L. Taylor:

    If we are going to propose a solution that requires amending the constitution–then let’s create a system of early elections to fill the slot for the remainder of the term.

    The circumstance that would most likely lead to a simultaneous vacancy in both the Presidency and Vice Presidency would be some sort of catastrophic occurrence like a plane crash or terrorist attack; we would need to have the office filled immediately. It would take us weeks if not months to put together a legitimate election.

    The 12th Amendment was not a response to the rise of parties (which was still in process at the time). It was because the Framers screwed up by giving the electors two votes each and making the VP the second place winner without figuring out in advance that that could lead to a tie, as happened in 1800. It was a basic design flaw.

    Yes, the proximate cause was the Jefferson-Burr tie in 1800. But that happened because Jefferson and Burr (and Adams and Pinckney) ran on party tickets in response to the disaster of 1796, when Jefferson, who opposed pretty much all of Adams’ policies, became his VP. Had Adams vacated the office for some reason, we would have had an epic shift in mid-stream, including flipping our support from Britain to France in the ongoing European wars.

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  5. @gVOR08:

    This issue has little if anything to do with Trump and Pence specifically.

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  6. James Joyner says:

    @gVOR08:

    possibility that Trump and Pence might be more or less simultaneously impeached for acts of venality up to treason (in the vernacular usage), I’m failing to see why it’s unreasonable to think succession should pass to someone other than their appointees.

    As noted in the next paragraph, that specific case might be one where a party flip would be seen as a fair outcome. But it would be seen, not unreasonably, by those who supported the Trump-Pence ticket as a coup. Further, in the more likely case of POTUS and VPOTUS being taken out in a terrorist attack or other calamity, it would make no sense at all to switch policies midstream. A President Boehner would have likely wanted to replace most of the Obama cabinet with loyalists.

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  7. Mike Schilling says:

    If Trump and Pence were removed from office, Pelosi succeeded to the presidency, and a suit were filed by the GOP, it would be successful, because all such actions are decided strictly on party lines. It happened in 1876, it happened in 2000, and it would happen again in 2019. (In the unlikely event that the open seat stays open, it fails 4-4.)

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  8. @James Joyner: I meant to note you would have to have an acting president until such a time as an election could be held.

    And the whole VP in second place bit was just a bad idea from the beginning.

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  9. James Joyner says:

    @Steven L. Taylor:

    And the whole VP in second place bit was just a bad idea from the beginning.

    Agreed. It makes no sense unless there’s a George Washington available.

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  10. MBunge says:

    Why are people so afraid of democracy? We only need rules on Presidential succession to ensure that we don’t wind up with different government agencies shooting at each other on the streets of Washington, DC. Beyond that, it’s the people who should decide these things.

    Let’s examine this whole Russia thing, putting aside the FACT that there’s still no evidence of collusion or that anything Russia did or is accused of doing actually affected the 2016 election. If Democrats want to remove Trump and Pence from office, they should not be shielded from the consequences of that action. They should be forced to face the judgment of the American people in 2020 on the appropriateness of installing President Pelosi.

    Consider this. What would have happened in the past if the President and Vice President were both removed from office and the Speaker of the House had assumed the Presidency? If Reagan and Bush the Elder had been simultaneously assassinated, would Tip O’Neill have walked into the Oval Office and not only immediately fired every member of Reagan’s cabinet but reversed every single Reagan policy and immediately try to replace it with the Democratic-favored alternative?

    OF COURSE NOT!!!

    O’Neill would have initially behaved as an extremely non-partisan caretaker until the feelings of crisis had subsided and would have continued to act as President after that with enormous sensitivity to Republican fear and anger over losing power in such a manner. And while the theoretical O’Neill Administration would undoubtedly differ from the actual Reagan Administration in many ways, the overwhelming majority of elites on both sides of the aisle would have worked together to deal with the situation like responsible citizens.

    This post is nothing more than an expression of James Joyner’s fear that his fellow elites are no longer capable of such behavior.

    Mike

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  11. Andre Kenji de Sousa says:

    I think that there is a sensible case for a mandatory retirement age for public officials, from teachers to the President. And a I think that few Democrats are incensed to have people over 70 as their leaders. As Kylopod once commented, they want candidates that would defend Social Security, not candidates that are already on it.

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  12. James Joyner says:

    @MBunge: In what sense is having a President Pelosi or a President O’Neill “democracy”? Being elected by one Congressional district in San Francisco or Boston in no way confers a national mandate.

    Do I think our political norms have changed since 1981? Sure. It happened a long time ago. Newt Gingrich would have shown nothing like the deference you ascribe to O’Neill had he taken over the presidency from Clinton in 1995. Ditto Pelosi had she taken over for Bush in 2007 or Boehner had he taken over for Obama in 2012.

    Regardless, if your goal is “democracy,” continuing the elected administration is much more likely to achieve that than a sudden switch in party.

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  13. Just nutha ignint cracker says:

    Just a possible new alternative: How ’bout considering an impeachment as representative of failed government in the Parliamentary sense? President gets impeached, Congress and whoever’s left muddle through while a complete national election–535 Congressional seats and Presidential is set up for 6 months or so in the future. Mull it over. See if you like it. I got no dog in the fight because I see our current situation as a societal failure not a governmental, Constitutional or political one. I can be happy with whatever is decided–or not decided, as the case might be.

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  14. Andre Kenji de Sousa says:

    @Just nutha ignint cracker:

    How ’bout considering an impeachment as representative of failed government in the Parliamentary sense?

    Because Parliamentary and Presidential Republics are completely different things. That’s why you can’t compare the time that Angela Merkel spent as Head of Government with the time that Hugo Chavez spent as both Head of Government and Head of State.

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  15. Just nutha ignint cracker says:

    @Andre Kenji de Sousa: I started out knowing that. Now explain why same type of process is impossible for 2 different election systems. And please avoid going to the relative size of the United States vis a vis any given nation in the world not named Russia, China, Canada, or Brazil as I get the logistics problem, too.

    All I am doing is blue skying here. One of the principles of critical thinking that I used to lecture my composition students about is that sometimes it’s a good idea to slash the box open rather than staying in it. Beyond that, brainstorming is about being open to considering ideas that may turn out to be stupid. No crime in looking or trying on–just like fashion.

    Finally, as I noted in my first comment, I’m not sure that the problem can be solved at all in that it represents a systemic problem in our culture rather than a structural problem in our systems. As others have noted enough times that I need not go into detail electing Trump represents a societal failure of monumental proportions. The US government can recover over time, but not if society keeps making mistakes such as the ones on both sides of the 2016 election. Many say I am too cynical, but I don’t believe our society is good enough or wise enough to turn away from these mistakes. With that being the case, the United States as a nation and political power is in eclipse. I’m old enough that I probably won’t see the end of the show. You may not see it, but I’m confident that your children and/or grandchildren will.

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  16. Just nutha ignint cracker says:

    @Just nutha ignint cracker: As I noted as a problem at a school at which I was teaching (and it was true of the company that I worked for before I went back to school to become a teacher) it’s like having a car with a blown transmission and deciding that what it really needs is tail fins and “smokin’ hot speakers” for the radio.

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  17. Kathy says:

    The problem in agitating for legislation or an amendment about this issue, is that it won’t interest many people. It’s just too unlikely to happen. That’s why the VP post got to be vacant many times, for instance.

    Given enough time, it will happen.

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  18. SC_Birdflyte says:

    There is no all-in-one solution, since there are only two elected members of the Executive Branch, hence not a deep talent pool to draw from. One idea might be to have the President designate the next four persons from the Executive Branch to succeed if both the Presidency and Vice Presidency are vacant. The designations, and any chances thereto, would have to be communicated in writing to both the Speaker of the House and the Senate President Pro Tem.

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