Presidential Succession: An Unsolved National Security Risk

By Fall 2018 M-VETS Student-Advisor Michael Vlcek

The United States would face a crisis in leadership if the President and the Vice President are simultaneously killed or removed from office. The United States does not have a clear Presidential succession plan, which is a national security necessity for a country with the largest military[1] and largest economy[2] in the world. Not only would the death of the President and Vice President require an immediate response abroad to ensure America’s allies of a peaceful transition of power and to quickly respond to enemy transgressions (particularly if another nation was responsible for the deaths of the President or Vice President), but the power of the Presidency would invite legitimate claims by multiple people demanding that, by law, they are entitled to the Presidency. This will likely put the Supreme Court in the role of determining the next President, with the decision possibly dividing the nation worse than when the Supreme Court decided Bush v. Gore.[3] Due to this danger, Congress must clarify Presidential succession and the Supreme Court must draft an advisory opinion on who is constitutionally allowed to succeed the President, before a fight over the Presidency occurs.

The Framers of the Constitution never established a clear understanding of how Presidential succession was to work. The Constitution’s Vacancy and Disability Clause[4] was so unclear that when President William Henry Harrison died from pneumonia, it was uncertain whether Vice President John Tyler would become President, or merely Acting President, and if there was a real distinction between the two roles.[5] It was only codified through the passage of the Twenty-Fifth Amendment that a successor to the President would in fact be the President.[6] However, this only applies to the Vice President, as the Amendment does not state that others in the line of succession could become more than an Acting President.[7]

It is commonly believed that the Presidential Succession Act of 1947 designated a clear order of succession,[8] from the President to the Vice President to the Speaker of the House to the President pro tempore to finally the Cabinet Secretaries in order of the creation of the federal departments.[9] However, the law fails to clarify important aspects of the succession process and may be unconstitutional.

The Presidential Succession Act of 1886 was created to create an order of succession beyond the President and Vice President to members of the President’s Cabinet. It was replaced by the Presidential Succession Act of 1947, which injected the Speaker of the House and the President pro tempore of the Senate into the order of succession before the Cabinet.[10] However, putting members of Congress into the order of succession may be unconstitutional.[11] It may violate the Constitution’s Ineligibility Clause, which prevents members of Congress from holding other offices in the federal government.[12] Further, the Constitution’s Vacancy and Disability Clause designates only an “officer” may succeed the President.[13] Throughout Article II, “officers” are persons appointed by the President, which does not include members of Congress.[14] This would prevent the Speaker of the House or the President pro tempore from becoming President.

In addition, the Presidential Succession Act of 1947 allows for officers serving as “Acting President” to be bumped out for somebody higher up in the order of succession.[15] This could mean that if the Secretary of State were to become Acting President, that person could be removed from power as soon as the House of Representatives elects a new Speaker.[16] Not only might this be unconstitutional for the aforementioned reasons, but it would also risk the United States having numerous Acting Presidents in a short amount of time, allowing for a chaotic leadership struggle.[17] Bumping itself may be unconstitutional, as the Framers did not design the Presidency to change hands on the whims of Congress, except in cases of impeachment.[18] The issue of bumping could create a struggle for the Presidency between a Secretary of State and a newly elected Speaker of the House, particularly if the Speaker comes from a rival political party.

Adding to the confusion is that each federal department has their own order of succession.[19] This became well-known to the public when then Attorney General Jeff Sessions had to relieve himself of responsibilities regarding overseeing the investigation of Russia’s interference in the U.S. Presidential election of 2016, in which the responsibility for overseeing the investigation was transferred from Sessions to the Deputy Attorney General Rod Rosenstein.[20] For example, the Director of Defense Research and Engineering is the sixteenth person in line to succeed the Secretary of Defense in the event the Secretary and the people below him are incapacitated or ineligible to serve as Acting Secretary of Defense.[21] An acting Cabinet Secretary could be eligible for the Presidency, provided that the Presidential Succession Act of 1947 use of the word “officer” is to mean the same as it did in the Presidential Succession Act of 1886.[22] Under current protocol, the secret service considers acting Cabinet officials as eligible to be President under the rules of succession.[23] Hypothetically, the Deputy Secretary of State could serve as the Acting Secretary of State, and therefore be eligible to become Acting President. However, this is unclear and could lead to a dispute between a Deputy Secretary of State and the Secretary of Treasury over the Presidency.

Outside of legal concerns, there are numerous practical concerns to the Presidential Succession Act of 1947. The current order of succession does not place the people best in line to handle a crisis.[24] For example, the President pro tempore (who is often the eldest member of the Senate and often an octogenarian or nonagenarian) is placed high in the order of succession.[25] In addition, Cabinet members are placed in the order of succession based on when the federal department was created.[26] While the Secretary of Agriculture and the Secretary of Commerce oversee important federal departments, these officials might not be best suited to take over in a crisis compared to the Secretary of Homeland Security.[27] Furthermore, everybody in the order of succession works in Washington D.C. (with the exception of the Secretary of Defense, who works in nearby Arlington, Virginia). This increases the risk that an event could happen which would incapacitate multiple (or all) persons in the order of succession, which raises the likelihood of an unclear successor and a fight for succession.

To prevent a battle for the Presidency after a tragedy, Congress and the Supreme Court must get involved now. The Supreme Court could address the constitutionality of the Presidential Succession Act of 1947, particularly if members of Congress may become officers.[28] Congress should design a system that avoids current problems with the Presidential succession.[29] This could include allowing the President to place certain governors into the order of succession.[30] This would put qualified, experienced executives into the order of succession. In addition, governors are not located in D.C., which helps avoid the scenario of all members of the order of succession perishing in attack that destroys D.C. and its surrounding localities. Another solution is to eliminate the bumping provision, to create stability when one person becomes Acting President.[31] Finally, the ambiguity whether an acting Cabinet member is eligible for Presidential succession should be resolved.[32]

The current Presidential succession laws in the United States threaten instability if nothing is done. America faces a disastrous scenario if multiple parties have valid claims for political power were to fight it out in the courts, particularly during a national emergency. Hopefully, the day never comes when the United States will need a thought-out succession plan in place. However, national security is all about anticipating the worst-case scenario. Preparing for a disastrous situation in which the President and Vice President are killed or removed from office requires both Congress and the Supreme Court resolving the current issues with Presidential succession, before it’s too late.

 

[1] Jeremy Bender, “Ranked: The World’s 20 Strongest Militaries,” Business Insider (October 3, 2015) https://www.businessinsider.com/these-are-the-worlds-20-strongest-militaries-ranked-2015-9/#20-canada-1.

[2] Prableen Bajpai, “The World’s Top 20 Economies,” Investopedia (January 2, 2019) https://www.investopedia.com/insights/worlds-top-economies/.

[3] 531 U.S. 98; see e.g. Jeffrey Toobin, “Justice O’Connor Regrets,” The New Yorker (May 6, 2013) https://www.newyorker.com/news/daily-comment/justice-oconnor-regrets. Justice Sandra Day O’Connor regrets the Supreme Court taking Bush v. Gore. She goes on to say the case “stirred up the public” and “gave the Court a less than perfect reputation.”

[4] U.S. Const. Art. II §1 cl. 6.

[5] Robert McNamara, “John Tyler: First Vice President to Suddenly Replace a President,” ThoughtCo. (March 17, 2017) https://www.thoughtco.com/john-tyler-vice-president-replace-president-1773862.

[6] U.S. Const. amend. XXV.

[7] See id.

[8] See e.g. Jason Silverstein, “Here’s the Presidential Order of Succession – Just in Case,” New York Daily News (May 17, 2017) https://www.nydailynews.com/news/politics/presidential-order-succession-case-article-1.2973129.

[9] See 3 U.S.C. §19.

[10] Id.

[11] See Norman Ornstein, “It’s Armageddon,” American Enterprise Institute (February 9, 2004) http://www.aei.org/publication/its-armageddon/.

[12] U.S. Const. Art. I §6 cl. 2.

[13] U.S. Const. Art. II §1 cl. 6.

[14] M. Miller Baker, “Ensuring the Continuity of the United States Government: The Presidency,” Global Security (September 16, 2003) https://www.globalsecurity.org/security/library/congress/2003_h/030916-baker.htm.

[15] Thomas H. Neale, Presidential Succession: An Overview with Analysis of Legislation Proposed by the 109th Congress, CRS Report for Congress (June 29, 2005) https://fas.org/sgp/crs/misc/RL32969.pdf.

[16] Id.

[17] Id.

[18] See U.S. Const. Art. I, §2, cl. 5.

[19] See e.g. Executive Order 13533 (2010).

[20] Meghan Keneally, “Who Would Fill Deputy Attorney General Rod Rosenstein’s Position If He’s Fired or Resigns?”, abc News (September 25, 2018) https://abcnews.go.com/US/explaining-justice-departments-line-succession-trump-off-script/story?id=58044089.

[21] Supra note 19.

[22] “The Presidency: Preserving Our Institutions,” Continuity of Government Commission, 34 (June 2009) https://www.webcitation.org/67sZJhkHR?url=http://www.brookings.edu/~/media/research/files/reports/2009/7/06%20continuity%20of%20government/06_continuity_of_government.pdf.

[23] Id.

[24] See 3 U.S.C. §19.

[25] See id.

[26] See id.

[27] See id.

[28] See id.; supra note 22.

[29] See Second Fordham University School of Law Clinic on Presidential Succession, Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System, 86 Fordham L. Rev. 917 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol86/iss3/3.

[30] See e.g. Id. at 952. This idea is like the “standing successor” proposal.

[31] See Id. at 954.

[32] See Id.