Presidential Succession Crisis?

Bruce Ackerman has read a novel and heard unsubstantiated rumors and from these concocted a Constitutional crisis which he’s convinced the folks at Slate to publish.

New Yorker writer Jane Mayer’s new book, The Dark Side, opens with a shocker. Apparently sometime in the 1980s, President Ronald Reagan issued a “secret executive order” that in the event of the death of the president and the vice president “established a means of re-creating the executive branch.” Reagan’s order violated the express terms of the Constitution and governing statutes.

Does a similar order exist today? We aren’t told. But we do know that Dick Cheney participated in the secret “doomsday” exercises under the Reagan order, and given his central role at present, it is imperative for Congress to find out.

Congress last considered the problem of a dual vacancy in the presidency and the vice presidency when Harry Truman was in the White House. In the Presidential Succession Act of 1947, lawmakers stipulated that if both positions are empty, power passes first to the Speaker of the House or, if she, too, does not survive, to the president pro tem of the Senate. But relying on James Mann’s earlier book Rise of the Vulcans, Mayer reports that Reagan “amended the process for speed and clarity … without informing Congress that it had been sidestepped.” We don’t know how. But if the order bypasses the speaker and the Senate president pro tempore in favor of an official in the executive branch, we have a recipe for a constitutional crisis.

Well, yeah.  But, as Ackerman acknowledges, the Bush Administration has explicitly stated that they’ll follow the Succession Act.  And there’s the Supreme Court, which would surely uphold a duly passed, six-decade-old statute if it conflicted with a “secret” executive order from a dead executive.

Now, as it happens, I think the 1947 process is a dubious one. It simply makes no sense to have an elected president of one party succeeded by someone, potentially of the opposition party, elected only by the residents of one Congressional District.  I’d much prefer, say, the Secretary of State or the Secretary of Defense to take over.  We should change the law to that effect, in theory, but there’s generally not much impetus to pass legislation on purely theoretical matters that no voter is likely to decide the next election on, let alone if said legislation would shift power, however theoretical, away from the legislative branch.

Still, a Constitutional crisis, it ain’t.

via Dave Winer’s FriendFeed

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies 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. Dave Schuler says:

    You want something to worry about read the first report of the Continuity of Government Commission.

  2. Bithead says:

    I dunno how much credibility I give the story James, but if true it would tend to explain Alexander Hague, and his actions the day Reagan got shot.

    It simply makes no sense to have an elected president of one party succeeded by someone, potentially of the opposition party, elected only by the residents of one Congressional District.

    No, it does not. For example, in the aforementioned Reagan shooting, that protocol would leave Tip O’Neil as president.(Shudder)

  3. Wayne says:

    Reagan may have simply spell out the succession of different acting department heads in a mass death scenario or who gets to sign off on things that need immediate attention until the rightful successor is able to take control. Also if communication is cutoff from different theater and Washington, who takes command and how much are they able to do. None of which is a violation of the Succession Act.
    To not prepare procedures and protocols for unusual situation would be foolish. Can’t cover them all but to not cover any would be a dereliction of duty.The executive branch doesn’t have the luxury of waiting around and calling for investigations when a disaster hits.

  4. James Joyner says:

    it would tend to explain Alexander Hague, and his actions the day Reagan got shot.
    My sense on Haig was always that he was doing what Army officers are trained to do: Take charge in the absence of superiors. The correct answer for a second lieutenant, when asked “Who’s in charge here?” was always, “I am, sir!”

  5. Bithead says:

    A very reasonable assumption, and one that does him more credit than most will give him I think. Certainly more than he got in the days after that event.

    Wayne’s response also seems quite reasonable.
    It’s almost cliche to question the timing on this story being released, but it also seems a reasonable question given we’re in an election year.

  6. I’ve quoted you and linked to you here.

  7. Beldar says:

    Actually, the Speaker of the House and the President Pro Tempore of the Senate are elected both by their own constituents and, respectively, by their fellow Congressmen and Senators.

    That’s vastly more small-d democratic than elevating a political appointee of the President whose only broader connection to small-d democracy has come through the Senate’s confirmation vote.

    I’m not terribly troubled by the notion that a sudden sweep down the succession ranks to the Speaker or President Pro Tem might result in an instant change in the political party holding the White House. By definition, we’re talking about a situation in which there has been a decapitation of our national leadership; if ever there is a time at which one may reasonably expect purely partisan concerns to drop into the background, at least for a while, it would be then. And that is also exactly the time at which political legitimacy — the sense that the government is still in the hands of someone actually elected by the people — is more important than ever.

    To again pick up on the Al “I’m in Charge Here” Haig historical incident, what troubled so many about that was the notion that this ex-general might effectively be mounting, or simply tempted into, a coup d’état. Even if we were considering a cabinet secretary who doesn’t have a military background (and it’s no accident that quite a few Secretaries of State have indeed had them), cabinet secretaries are likely to be viewed by the public as having been chosen on a highly partisan basis, in which their democratic input has been fairly remote. Add in the possibility that we might have a President who’d won in the Electoral College but lost in the popular vote — which was exactly the case on September 11, 2001 — and the danger of the public feeling alienated and disenfranchised may become quite alarming.

  8. Bithead says:

    I’m not terribly troubled by the notion that a sudden sweep down the succession ranks to the Speaker or President Pro Tem might result in an instant change in the political party holding the White House.

    I am.
    Consider the attempt by Pelosi and company to pass a bill going after Turkey for what the bill called “Armenian Genocide” over 100 years before… just as we were trying to negotiate with Turkey for use of it’s bases and for supply lines runing through Turkey to support our operations in Iraq. This could ahve only been labeled as political sabtage which would have resulted in a lot of our troops dying needlessly. Troops who do not get supplies they need, tend to do that, you know.

    Consider the Demoxcrats… again Pelosi in the lead, dealing with FARC.. a known terrorist group, incidental to the congressional discussion about the free trade agreement with Columbia.

    Think someone, or a group of someones who are capable of such acts, are incapable of murder for political advancement of the party? I don’t. Why put a mechensim in place that will do nothing but give them that opportunity?

  9. Grewgills says:

    Think someone, or a group of someones who are capable of such acts, are incapable of murder for political advancement of the party?

    Wow! Even for you that’s out there.

    for what the bill called “Armenian Genocide”

    Do you disagree that it was indeed genocide as the scare quotes imply?

  10. Bithead says:

    Arguably, it was. But of course it’s just a coincidence that after 100 years, it had to come up in the middle of all that, right? Just an innocent timng thing.

  11. sunflower says:

    Well heck. Bruce is the new Seymour Hersh.

  12. Arty says:

    There has been multiple terrorist attacks across the county, the president is dead, the vice president is dead and Nancy Pelosie is now the Commander in Chief. Ackerman is right, we have to fix this.

  13. Kilo says:

    Bamford reported the same thing back in 2004. Link to Amazon page in my name.

    BTW this is an excellent comment system.

  14. I have to break with my crowd and join you on this–everything done during the Reagan Admin would have been seen through the eyes of nuclear holocaust, not terrorism. No way would they have allowed a “shadow government” to be set up during the Clinton years–could you imagine a scenario where Newt would NOT have been President in a calamity? And Cheney was actually sane during the 1980s.

    I know, I know. I’m a bad liberal. But what’s a guy got to do to get some common frickin’ sense around here.

  15. johnshade says:

    The Dark Side isn’t a novel.

  16. johnshade beat me to that correction.

    Bithead:

    You appear to be wanting to make general policy about succession during a crisis based on the specific example of the current Speaker (or past Speakers you didn’t like). That doesn’t make sense. Presumably you would have had a different opinion in say, oh, 1995 when Gingrich was Speaker and Clinton was President?

    You can’t make general rules about hypothetical situations based on which politicians you like or dislike.

    I will say to the broader suggestion about the process made by James that I would prefer succession to the Speaker or President Pro Tempore in such a situation because at least they are constitutionally mandated offices, which offices like Secretary of State are not.

    The issue of partisan affiliation at such a time is secondary (at best), it would seem to me.

  17. Bithead says:

    You appear to be wanting to make general policy about succession during a crisis based on the specific example of the current Speaker (or past Speakers you didn’t like). That doesn’t make sense.

    No, I’m suggesting that any policy that hands the white house to the party opposite, whichever way that goes, in the event of an assasination doesn’t make much sense, since that would seem to raise the chances of such an assasination happening.

    I suppose this policy lack to be a product of the founders views about parties in general, which they (I think Washington, particularly) referred to a the ‘politics of faction’. They assumed that party lines wouldn’t enter into it.

    Anyway, I’m suggesting it does, and we’d better fix it, regardless of who has the White House.

  18. Kilo says:

    No, I’m suggesting that any policy that hands the white house to the party opposite, whichever way that goes, in the event of an assasination doesn’t make much sense, since that would seem to raise the chances of such an assasination happening.

    Except which party is in control of congress is up to the voters. They voted to elect the executive, which is now dead. Hence, who better than the head of the other group the voters elected ?

    No matter how much you hate Pelosi, you must realise that as speaker, she has the support of an existing base of power.
    Imagine what happens if the executive instead picks some random guy without this support.

  19. Bithead says:

    Except which party is in control of congress is up to the voters. They voted to elect the executive, which is now dead. Hence, who better than the head of the other group the voters elected ?

    If they’d wanted a member of that party in the white hosue they’d ahve put him there. In your scenario they did not. So what you’re talking about inviting is the ability of over-riding the wishes of the people with a bullet.

    No matter how much you hate Pelosi, you must realise that as speaker, she has the support of an existing base of power

    Well outside the point and not true anyway, just now. But we’ll get to that part in another thread.

    What you’re missing here is where I say the parties in each case are not my argument; that a party change occurrs in the role of POTUS because of an assasination, is.