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John C. Fortier
President Cheney spent Saturday morning reading in an armchair until a fax arrived signaling an end to his presidency. Cheney’s three hours at the helm were uneventful and occurred only because President Bush was sedated for a routine colonoscopy. But while this transfer of presidential authority was smooth, the current succession system is not adequate for the post-Sept. 11 world of terror. Congress is particularly to blame for this situation because it has placed its own leaders in the line of succession and lessened the chances of a clean transfer of power in a time of crisis.
The Constitution provides for the vice president’s succession to the presidency but leaves to Congress the power to establish the rest of the line of succession by legislation:
“Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President. . . .”
Without an election, outside forces could effect a change in the party in control of the White House.
Congress’s power in writing a succession law is quite broad, but the Constitution does make one limitation–the line of succession must consist of “officers.” By this term, the founders almost certainly meant officers in the executive branch and not members of Congress. Many constitutional commentators beginning with James Madison believed that having members of Congress in the line of succession is unconstitutional. Despite these objections, the line of succession has often included members of Congress. The first such law included only the president pro tempore of the Senate and the Speaker of the House, in that order. Madison, who fought against this law, believed it was passed for political purposes to keep then-Secretary of State Thomas Jefferson out of the line of succession. In 1886, the law was changed to include only the president’s Cabinet. But it was changed yet again at the urging of President Truman, and it now includes the Speaker and president pro tempore, followed by the Cabinet.
Aside from questions of its constitutionality, consider how destabilizing such a law can be. If a terrorist or zealous partisan were to kill the president and the vice president, the Speaker of another party might assume the presidency. Reagan and Bush would have been replaced by Speaker Tip O’Neill (D-Mass.); Clinton and Gore by Speaker Newt Gingrich (R-Ga.); Bush and Cheney by Speaker Nancy Pelosi (D-Calif.). Without an election, outside forces could effect a change in the party in control of the White House.
And consider that a catastrophic terrorist attack might be not only devastating, but also much messier and confusing with respect to presidential incapacity than scheduled surgery. If an attack were to kill the vice president and severely wound the president, our current law would have the Speaker of the House step in to temporarily replace the president. But no member of Congress can hold an executive branch position, so Speaker Pelosi would have to resign from Congress to take the presidency, and when the president recovered, she would be out of a job. And of course, this injured president might have additional medical problems, which would require another Speaker of the House to step into the presidency.
Cabinet officers of the president do not face this dilemma. They are of the same party or at least the same philosophy as the president, and the Constitution allows them to act as president during a presidential disability and return to their jobs when the president recovers.
There is a democratic ring to having leaders of Congress in the line of succession. But the reality is that such a practice is unconstitutional and dangerous to the functioning of our government after an attack.
John C. Fortier is a research fellow at AEI.
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