Chain of Succession: who would lead America after disaster?

Even more reasons the Democrats must take control of the House, Senate and Supreme Court appointments. ---BBB

Chain of succession
If disaster were to strike, who would lead America?
By CHUCK LINDELL
Posted: Jan. 24, 2004

If a terrorist attack killed the president and vice president, existing laws could not guarantee a smooth transfer of power, raising doubts that a legitimate chief executive would occupy the White House when stability and action would be most needed.

How Succession Laws Evolved

Congress extended the line of succession beyond the vice president, adding the Senate's president pro tempore, followed by the speaker of the House.

Congress replaced congressional leaders with cabinet members, in order of each department's creation.

The Constitution's 20th Amendment addressed the death of a president-elect, stipulating that the vice president-elect becomes president.

Congress placed the Speaker of the House, followed by the Senate president pro tempore, before Cabinet members in the line of succession.

The Constitution's 25th Amendment lets the president nominate a vice president, with approval of both houses of Congress, to fill a vacancy. Also establishes procedures for the temporary incapacitation of the president.

Source: Continuity of Government Commission Chain Of Power

The potential for chaos, admittedly remote but frighteningly real to constitutional scholars, was given urgency when the attacks of 2001 added airliners and the U.S. mail to the terrorist arsenal.

Government leaders forced to face their own mortality found disconcerting cracks in the line of presidential succession - which lists, in comforting and explicit order, the 17 men and women who would replace a fallen president.

Yet all of those would-be presidents live and work in the Washington, D.C., area - an all-eggs-in-one-basket situation that scholars call the system's most obvious, but not only, flaw.

Even events far short of a cataclysmic attack could mire the nation in a presidential-succession crisis, and few Americans realize how many debacles have been narrowly averted since George Washington's first oath of office in 1789.

Perhaps that explains why historians and scholars are leading the charge to rewrite the pertinent laws and amend the Constitution - and why this matter has been taken up in Congress, as recently as last week.

"We've dodged bullets many times," said Norman Ornstein, an authority on Congress and author of "Congress, the Press, and the Public." "We simply want to ensure that if, God forbid, something else happens, that we're ready."

Since 1947, the line of presidential succession has begun with the vice president, then speaker of the House and president pro tempore of the Senate, who is typically the longest-serving senator in the majority party. Cabinet secretaries follow, based on their department's creation date.

Ensuring the continuity of government is no different than stockpiling vaccines for a disaster - only now, we're stockpiling laws, said Philip Chase Bobbitt, a University of Texas law professor and a former National Security Council director for intelligence.

"I think that you want to have laws that have been considered in tranquility, that people have thought about very coolly or soberly and not have to try and make up in the context of tremendous terror and emotion," he said.

The ultimate goal is a smooth succession no matter the circumstance. "You don't want people saying to our leadership, 'Wait a minute, who appointed you?' Or equally bad, having more than one claimant issuing orders. Who will the FBI obey? Who will the Army obey?" Bobbitt said.

Bobbitt and Ornstein serve on the Continuity of Government Commission, a private effort of two prominent think tanks, the conservative-leaning American Enterprise Institute and the liberal-leaning Brookings Institution.

The group's first report, issued last spring, focused on reconstituting a decimated Congress. It was embraced by Sen. John Cornyn (R-Texas), who introduced a constitutional amendment based largely on commission recommendations. The report landed with a notable thud in the House, where influential members objected to calls for appointing representatives until special elections could be held.

(According to The Associated Press, a House committee recommended legislation last week that would provide for fast special elections if a terrorist attack killed or incapacitated many House members. The measure would require expedited elections under "extraordinary circumstances" when the Speaker of the House announces that vacancies in the 435-member chamber exceed 100.

The bill stipulates that parties choose candidates within 10 days of that announcement and that state elections be held within 45 days.

House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.), the main sponsor of the legislation considered last week, has opposed efforts to solve this problem by constitutional amendment, saying the House should maintain its status as a popularly elected body. His bill, he said, would "protect the people's right to chosen representation.")

Meanwhile, the independent panel is studying presidential succession for its next report, due this spring.

Ideas for change include creating an assistant vice president, removing Congress from the line of succession or nominating regional security officials, perhaps populated by sitting governors, to step into the top executive branch vacancies.

This year, the commission will examine methods to repopulate the Supreme Court, ending an ambitious schedule that participants acknowledge is driven partly by fear.

"The failure to provide for the continuity of government is, I believe, an open invitation for terrorists to strike again," said commission member Thomas Mann, a congressional authority for the Brookings Institution.

Congressional leaders were added to the line of presidential succession in 1792, removed in 1886, then reinstated in 1947.

Their presence, however, raises several troubling questions, as illustrated by an episode late in the Nixon presidency, said Yale law professor Akhil Amar.

With impeachment looming in the fall of 1973, President Nixon nominated House Minority Leader Gerald Ford to replace the disgraced Spiro Agnew as vice president.

Ford needed approval from both houses of Congress, but several Democratic representatives suggested that Speaker of the House Carl Albert (D-Okla.) slow down the confirmation process. If Nixon were impeached without a vice president, they reasoned, Albert would return the White House to the Democrats.

Transition memos were drafted for an Albert administration, but "the speaker, true to form, refused to have anything to do with the scheme," Ford wrote on the 25th anniversary of his nomination. Ford would become president upon Nixon's resignation in August 1974.

"The current statute . . . creates perverse incentives and conflicts of interest," Amar told a continuity commission hearing in October.

But Amar warned of a more basic flaw.

Many experts, he said, believe the Constitution forbids Congress from entering the line of succession. According to Article II, Section 1, Congress may determine which "officer" should lead the country in the absence of the president and vice president, but "officer" applies to executive branch officials, not members of Congress, Amar said.

The law, which has never been applied, is open to a court challenge, he said.

"That is not going to give the country the kind of stability, the unquestioned legitimacy, that you really ideally want to have in this disastrous scenario. It creates a constitutional cloud, really, over the successor," Amar said.

Keeping Congress in the line of succession poses additional problems, Amar and other witnesses said, including:

Elevating House or Senate leaders raises the prospect of a midterm party switch in the presidency, producing a dramatic shift in policy and agenda. Imagine replacing President Reagan with Speaker Tip O'Neill (D-Mass.) or President Clinton with Speaker Newt Gingrich (R-Ga.).

Fears of a party switch could "warp" the perspective of Congress during impeachment proceedings, creating improper incentives to keep or dismiss a president.

An incapacitated president could magnify partisan issues. Would a newly elevated House speaker from the opposing party replace the cabinet, issue executive orders or commit troops - despite the possibility of the president's return?

Succession rules apply if the president is briefly incapacitated - for anesthesia, for example - and the vice presidency is vacant. The separation of powers requires the House speaker to resign to become chief executive, no matter the duration of incapacitation.

Deleting members of Congress from the line of succession - which U.S. law did from 1886 to 1947 - or moving legislators below the cabinet would solve many of the problems, said John Fortier, director of the continuity commission.

The law also could be rewritten to allow members of Congress to return to Capitol Hill after filling in for an incapacitated president.

After President Franklin Roosevelt died in office, former Vice President Harry Truman lobbied hard to get members of Congress reinserted in the line of succession.

These were the days before a vice presidential vacancy could be filled (that wouldn't be allowed until the 25th constitutional amendment was ratified in 1967), and Truman wanted elected officials to have precedence over appointed cabinet members.

Truman's motives were pure, but he couldn't foresee the rise of global terrorism when he signed the Presidential Succession Act of 1947 into law.

Today, scholars playing a morbid game of "what if" have discovered an unsettling loophole in Truman's law.

What if the president, vice president and most of Congress are killed in an attack? The nation's governors could quickly appoint new senators, but the Constitution requires House members to be elected, and special elections typically take about four months to accomplish.

Fortier envisions the secretary of state, fourth in the line of succession, being sworn in as president - only to be "bumped" by the Senate president pro tem once the newly constituted Senate begins functioning. That president could then be bumped when the House finally designates a speaker.

"You might have three presidents in the course of a short period of time," he said.

The law's bumping provision raises the specter of Congress holding the presidency hostage, in effect telling the former secretary of state, "'You may act as president, but if it turns out we don't like what you're doing, we will then claim the presidency for ourselves' - thereby more or less eviscerating the separation of power," Fortier said.

Cornyn has become the continuity commission's leading advocate in Congress, and his constitutional amendment to quickly repopulate the House recognizes the potential for trouble that exceeds questions of presidential succession.

"Congress plays a crucial role in war," said Bobbitt, the Texas professor. "Not just for the declaration of war . . . but in the prosecution of war, in appropriating money. You couldn't reinstitute the draft without Congress."

Without Congress, the United States also could not make treaties, bail out reeling industries or confirm justices to the Supreme Court, which presumably would decide disputes over the line of succession.

Under Cornyn's amendment, introduced because he's chairman of the Constitution Subcommittee, if at least one-fourth of the representatives are killed or incapacitated, states could:

Let the governor or legislature appoint an interim representative, for up to 120 days, until a special election could be held.

Choose from a list of replacements drawn up by each incumbent.
Schedule an expedited special election.

Influential House members, opposed to changing the constitutional requirement that every representative be elected, are pushing a bill that requires special elections within 45 days if more than 100 seats are vacant.

Cornyn believes that's an unacceptably long wait in a crisis, and several members of the continuity commission agree.

Because democracy is impossible without legitimate and dependable leaders, Ornstein said, he will continue prodding Congress to act.

"It's like writing a will for the American people," he said. "If not, then we could have chaos."
------------------------------

Chuck Lindell writes for the Austin American-Statesman.