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August 11, 2021
Presidential Succession Law: Ticking Time Bomb?The perils of placing two members of Congress before the Cabinet.

(This article forst appeared in the American Spectator:

By: John C. Wohlstetter, Senior Fellow

My series on the 25th Amendment — Part I, historical antecedents; Part II, 25th Amendment genesis; Part III, 25th Amendment implementation today; and Part IV, possible first-ever use of the 25th Amendment’s involuntary presidential disability provision — focused almost exclusively on the Constitutional issues, dipping down into legislative enactment (in legal shorthand parlance, “statutory”) issues only when necessary.

As noted in my series, presidential succession, as enacted as part of the landmark 1947 National Security Act, created the potential for serious conflict at a time when stability is most needed; the updated presidential succession statute is set forth below. Placing the Speaker of the House and President pro tempore of the Senate immediately after the vice president and before any member of the president’s Cabinet — in Constitutional parlance, “heads of the executive departments” — risks having an administration being turned over to the opposition party, in stark contravention of voter preference expressed in the polling booth.

The law provides:

  1. Only the Speaker and president pro tem can ascend to the Office of the Presidency for the full remainder of a presidential term.
  2. If the elected president is temporarily unable to discharge the “powers and duties” of the presidency, the Speaker or president pro tem serve merely as acting president — they assume the “powers and duties” of the presidency, but do not hold the office — until the president is able to resume serving as president.
  3. Members of the Cabinet cannot hold the Office (or title) of President — they can only serve as acting president.
  4. The Speaker and president pro tem must irrevocably resign from Congress to become president or acting president. A new Speaker can supplant a president pro tem who is acting president, but cannot replace a president pro tem who also holds the Office of President.
  5. Members of the president’s Cabinet stand in line of succession in the order that the departments were created.
  6. There is no line of succession to the vice presidency.
  7. Under Art. II, section 1 of the U.S. Constitution, to be eligible to hold the Office of the Presidency, a person must be: (a) a natural-born citizen; (b) at least 35 years old; (c) been at least 14 years a resident of the U.S.
  8. No one who fails to meet these requirements — whether Speaker or president pro tem or Cabinet member — can qualify to hold the Office of the President; nor can they serve as acting president.

A “Perfect Storm” in the Making

It is now more than a century since World War I ended. Yet unexploded, corroding munitions are still being discovered; periodically one explodes, adding to the Great War’s death toll.

The hidden danger created in 1947 by putting members of the legislature in the line of presidential succession is best illustrated by a dissenting opinion filed in the primary Supreme Court Japanese internment case, Korematsu v. United States (1944). Therein the Court held that the military, per a presidential executive order, could detain en masse 112,000 Americans of Japanese ancestry, based upon fear that they posed a threat of espionage and sabotage — without any supporting evidence offered in the courts as empirical justification. Despite conceding that the vast majority of them were loyal, patriotic citizens, the Court upheld the blanket detention.

Justice Robert H. Jackson, preternaturally wise in several monumental Supreme Court cases, wrote in his dissent to FDR’s wartime executive order:

[O]nce a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle.… The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic’.… There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case. (Emphasis added.)

The 1947 presidential succession law creates just such a “loaded weapon” — given the stakes involved in a presidential succession, more accurately in this context, a ticking time-bomb: the prospect of sudden transfer of power to a president of the opposition party.

This prospect first reared its head after Washington’s two terms, when political parties arose; these became ascendant by the 1820s. The Second Congress passed the original 1792 succession law that put the president pro tem of the Senate and the Speaker of the House second and third, respectively, in the line of succession, behind the vice president. The issue resurfaced in 1886, when the Congress was taken out of the line of succession, to be replaced by members of the president’s Cabinet. It resurfaced again in 1947, when President Truman put the Speaker and president pro tem back in line behind the vice president — albeit in reverse order vis-à-vis 1792. It resurfaced a third time (see Part II of my series) in the 1965 debates preceding legislative passage of the 25th Amendment.

Given the widely noted diminished condition of our current president, the ticking statutory time-bomb put in place in 1947 may well, at long last, explode, with a political megaton-force not seen since the first shots fired at Fort Sumter, 160 years ago. It would place at risk the very stability of the republic.

1885-1886: Fixing 1792’s Mistake

The 1881 assassination of president James Garfield revived interest in changing the 1792 law. The Republican Party was deeply split into two factions over the issue of civil service reform. The Stalwarts, which included Garfield’s assassin, Charles Guiteau, supported continuance of federal civil service patronage; Garfield’s faction, the Half-Breeds, supported civil service reform. Upon shooting Garfield, his assassin exclaimed: “I did it and I will go to jail for it. I am a Slalwart, and Arthur will be president.” Two letters were found in Guiteau’s pockets: one addressed to the White House, which stated: “The president’s tragic death was a sad necessity, but it will again unite the Republican party and save the republic. . . . I had no ill-will toward the president. . . . His death was a political necessity.” The other was addressed to vice president Chester Arthur, and included Guiteau’s recommendations for Cabinet appointees.

On Nov. 25, 1885, Grover Cleveland’s vice president Thomas Hendricks died. The office was vacant until Benjamin Harrison was inaugurated March 4, 1889. The 1792 law precluded Cleveland’s choosing a new vice president. The resourceful Cleveland did the next best thing: his first message to the incoming 49th Congress, in December 1885, called for passage of a Senate bill passed in 1885 that had died in the House. In 1886, he secured passage of a law rectifying the 1792 mistake. The line of succession ran through the then-seven Cabinet officers, beginning with the secretary of state, and then treasury, war (renamed Defense in 1949), attorney general, postmaster general (abolished 1971), secretary of the Navy (folded into Defense in 1949) and secretary of the Interior. In event of a double vacancy, the top-ranked eligible secretary was to serve as acting president until either: (a) the president’s or vice president’s disability ended; or (b) a special election was called, and a new president and vice president were elected; or (c) upon the end of the presidential term, on the next Inauguration Day.

The debate was informed by the near-miss attempt to remove president Andrew Johnson in 1868. After the House voted articles of impeachment, the Senate came within a single vote of convicting Johnson. Leading the Radical Republicans at the Senate trial was the president pro tem, Sen. Benjamin Wade of Ohio. With Johnson having succeeded the fallen Abraham Lincoln as president, the vice-presidency was vacant. Per the 1792 law the president pro tem stood in line ahead of the Speaker. It did not go unnoticed that Sen. Wade was hardly a disinterested juror — nor, that one Democratic senator from Johnson’s home state of Tennessee was the president’s son-in-law. The argument that party control might change was also aired in the deliberations, to no effect.

1945-2021: Relapse to Modified 1792

When Franklin Roosevelt died suddenly, less than 100 days into his fourth term, Harry Truman resolved to revise the 1886 law, by placing the Speaker and then the president pro tem back in the line of presidential succession. His stated reasons were: (a) all those in the line of succession should have been chosen democratically by the voters; (b) House members serve two-year terms, versus six years for senators, and hence they are more continually responsive to voter preferences; (c) though elected in a single Congressional district, the Speaker is the only officer, other than president and vice president (albeit, from a different branch of government), who represents voters nationwide, via election as Speaker by a majority of votes in the House.

Truman rejected the argument that voters in quadrennial presidential election years choose to be governed not simply by a president and vice president, but also by an administration for the next four years. The off-year biennial elections amount to only a mid-term grade on the administration’s performance. Truman would not be swayed, however, and he prevailed. Efforts to modify the antiquated 1947 law in 1965 foundered, mainly due to members in both Houses who preferred that there be no 25th Amendment. Rather, they wanted Congress to exercise plenary power to legislate matters pertaining to presidential and vice-presidential succession.

President Who????

To see the emerging danger, consider some of the Speakers and presidents pro tem that have served, since ratification of the 25th Amendment in 1967. Checking the list of House Speakers reveals a group all regarded by the opposing party as intensely partisan and/or not a serious prospective president: Democrats John McCormack (MA), Carl Albert (OK), Tip O’Neill (MA), Jim Wright (TX), Tom Foley (WA), and Nancy Pelosi; Republicans Newt Gingrich (GA), Denny Hastert (IL), John Boehner (OH), Paul Ryan (WI), and Mitch McConnell (KY).

A list of presidents pro tem shows some (though fewer, given the tradition — now greatly eroded — of Senate collegiality) either regarded as partisan, under qualified, or far too elderly to carry the workload of the presidency. Most notably were the cases of Sens. Strom Thurmond, pro tem at age 100, and Robert Byrd, pro tem at age 92. Unlike the office of Speaker (Art. I, sec. 2), the prime duty of presidents pro tem is to issue rulings on parliamentary procedure. Their presiding duties are largely ceremonial. The most important presiding task — breaking Senate tie votes — is given only to the vice president, as president of the Senate (Art. I, sec. 3).

Next: A Replay of 1886?

What would work best is to once again remove Congress from the succession line. But the stars do not seem aligned for this to happen. The current line of Cabinet succession runs to 15 of its 16 members, as Homeland Security Secretary Alejandro Mayorkas is foreign-born, and hence, ineligible.

Proposals since 1886 have included limiting the Cabinet succession line to a few department heads likely to possess national security experience — with State and Defense the first two in line, typically followed by Treasury (currently between State and Defense in the line). The problem with this is that there have been secretaries of other departments more knowledgeable than those ahead of them. The classic example of James Schlesinger comes to mind. Before being chosen as America’s first energy secretary by Jimmy Carter, he had been chairman of the Atomic Energy Commission under Richard Nixon, and secretary of defense under Gerald Ford. As head of the 13th executive department created, he stood way down the line of succession. The sole secretary ahead of him, with comparable credentials, was defense secretary Harold Brown. Further, while secretaries of state are generally regarded as qualified, treasury secretaries include people with no national security credentials to speak of