With Republicans in control of the House and Senate, many are calling for Congress to seek legislative common ground with President Obama. My suggestion is an inexpensive "infrastructure" project: repairing the presidential line of succession, whose current design is shoddy, constitutionally troubling and risky.
The current law places the speaker of the House in line for the presidency after the vice president, followed by the president pro tempore of the Senate. If neither can take office Cabinet members come next, but only until a speaker or a president pro tempore can qualify.
Here's the first problem with this: In recent decades, the speaker and president have usually been from different parties. But the watchword for succession is continuity; the White House is only supposed to change parties from elections.
Another problem is that legislators are not executives. It makes more sense for succession to flow through the Cabinet, the administration's top executives. Because the speaker must resign before acting as president, it would needlessly disrupt Congress too.
The biggest problem, though, is the law's questionable constitutionality. The Constitution empowers Congress to declare which "officer" acts as president when both the president and vice president are gone. Elsewhere, however, the Constitution makes clear that "officers" of the United States are only in the executive and judicial branches. Separately, it bars members of Congress from holding an "office under the United States."
This is no mere academic argument. Imagine that the vice presidency is vacant and, while Congress delays confirming an appointed successor pursuant to the 25th Amendment, something happens to the president. In the ordinary course of things, the speaker would take over without incident. But if the speaker's opponents blamed him for contributing to this situation (thus delivering the presidency to himself), they could contest his legitimacy with a strong legal argument. If the secretary of State joined them, the country would face a crisis as two people claimed the powers of the presidency. Plenty of damage could be wrought quickly. Given that the point of a succession law is to make it clear who is president, this threat is unacceptable.
There are more wrinkles in the legal argument than can be stated here, including points on the other side, but the constitutional problems are serious. They led Congress in 1886 to take the Senate president pro tempore and the speaker out of the line of succession. In 1947 Congress put them back in without debating the constitutional issues, but the current scholarly consensus is that speaker succession is unconstitutional.
President Truman spurred the current law when he objected to succession by the unelected Cabinet, because it meant that he was appointing his potential replacements. The speaker, by contrast, was an elected national figure. When Republicans took over Congress in 1947, they were happy to put their party leaders a heartbeat away from the presidency, and they enacted Truman's reform. But with the passage of the 25th Amendment in 1967, the Constitution approves of presidents appointing their successors, by directing presidents to appoint someone to fill a vice-presidential vacancy, subject to bicameral approval. Besides, Cabinet members are unquestionably "officers" in the constitutional sense, so their presence in the line of succession poses no constitutional uncertainties.
When Vice President Spiro Agnew resigned in 1973 and President Nixon nominated Gerald Ford to fill the vacancy, it took nearly two months for the Democrat-controlled Congress to confirm him. Speaker Carl Albert (D-Okla.) noticed his own conflict of interest and promised that if he had to replace Nixon he would appoint a Republican vice president and then resign. Speaker John Boehner should follow Albert's example and press for formal legislation to take himself and Senate President Pro Tempore Orrin Hatch out of the line of succession, in favor of the Cabinet. Prudent policy and fealty to the Constitution are more important than an obsolete bee in President Truman's bonnet.
Now is the time. There is little common ground between parties in Congress but an improved succession law will eventually favor both parties in turn. On this they could agree. More importantly, the country will benefit in the meantime.
Brian Kalt is a law professor at Michigan State University and the author of "Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies."
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