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Changing the System of Presidential Succession:

In a rare show of agreement, both liberal constitutional law scholar Sandy Levinson and conservative Michael Rappaport argue that the the 1947 presidential Succession in Office Act should be amended to allow the Secretary of State to be third in line for the presidency after the president and vice president (hat tip Instapundit). Under the current system, the line of succession first goes through the Speaker of the House of Representatives and the President pro tempore of the Senate.

As Sandy and Michael both point out, the status quo creates the potential for serious problems. A president who dies, becomes incapacitated, is impeached, or forced to resign might be succeeded by a politician from another party. For example, if Dick Cheney is unable to serve, George W. Bush would be succeeded by incoming Democratic Speaker Nancy Pelosi. From 1995 to 1998, Democrat Bill Clinton could have been succeeded by his political archenemy, Republican House Speaker Newt Gingrich. Divided government is now the normal state of affairs in American politics, so such scenarios are likely to be common.

There is also another weakness in the current system, one that Michael and Sandy don't consider in their posts. Fourth in line under the 1947 act is the president pro tempore of the Senate. By tradition, the president pro temp is the longest-serving Senator of the majority party. The current PPT is Republican porker Ted Stevens of Alaska - soon to be replaced by the Democrats' own "King of Pork," Bob Byrd of West Virginia. In addition to their other shortcomings, both Stevens and Byrd are in their 80s (83 and 89 respectively). This is not accidental. By its very nature, the presidency pro temp is likely to be held by elderly and often infirm politicians. Senators who last for decades are also likely (by virtue of their seniority) to be heavily implicated in porkbarreling and other dubious practices of the world's greatest deliberative body. For these reasons, among others, the PPT should not be included in the line of presidential succession.

Barry P. (mail):
Until 1804, the VP was the guy who got the second most votes in the presidental election. Maybe we should go back to that system. Think of how much fun it would have been over the past few years.
11.25.2006 3:47am
Perseus (mail):
Not too long ago Strom Thurmond (as PPT) could have assumed the presidency at the tender age of 98.
11.25.2006 3:58am
BobNSF (mail):
So in the event of a crisis, having lost both the President and Vice President, they think it would make sense to also have to replace the Secretary of State???
11.25.2006 4:03am
scepticalrepub:
I'd agree with this mostely symbolic change if it were part of a larger bill including real efforts on electoral reform. I'm old enough to remember when liberals used to smirk at the "boys will be boys" antics of Richard Daley or Lyndon Johnson stealing an election for JFK, but if we have any more polarizing problems with voting machines it is going to really hurt this country.
11.25.2006 8:11am
Strom Thurmond (mail):
I'd make 3rd in succession the 3rd baseman with the best combined fielding and batting statistics during the most recent postseason playoffs. 4th..the NFL QB with the best rating during the postseason. 5th..the most senior pilot currently serving with the "Blue Angels" US Navy flight demonstration team. Its not much more rediculous than the current set up and includes no former Klan officials or corrupt congressmen.
11.25.2006 8:29am
Strom Thurmond (mail):
President Placido' Polanco? Has a nice sound to it.
11.25.2006 8:45am
Jeremy Pierce (mail) (www):
Isn't there also the potential for abuse? If one party controls Congress, couldn't they engineer an impeachment for the sake of putting their party in charge of the executive as well? I know this would be hard to achieve given the 2/3 vote required for impeachment, but its mere possibility is a little worrisome.
11.25.2006 8:50am
Strom Thurmond (mail):
While I think Tom Brady would make an excellent president, he probably wouldn't take the pay cut. The original presidential succession act of 1792 sounds reasonable, holding a new election in the event of dual vacancies with the speaker or president of the senate serving as president in the interim.
11.25.2006 9:04am
PersonFromPorlock:
Why bother designating anyone after the Vice President? Didn't Jimmy Carter prove that while we need a President, we can do without one for four years?
11.25.2006 9:11am
Handsome Dan:
Amending the Succession Act is a good idea for many reasons. Aside from the ones mentioned above, it doesn't seem that the 1947 Act is even constitutional, for I don't believe that legislators constitute officers as required by the Succession Clause. House Speaker and Senate President pro tem are Congressional officers, but not officers of the United States. Further, because of separation of powers, those two legislators must first resign their Congressional seats before assuming the presidency, something that Cabinet members don't have to worry about.

The best academic treatment of this issue that I've found is by Profs. Amar.
11.25.2006 9:32am
Strom Thurmond (mail):
It was an ugly 4 years though, Disco, Liesure suits, the Pina Colada song, Russians in Afghanistan, Ayatollahs in Iran, gas even more expensive than today, and the minimum wage was $2.90!! that with a Democrat House,Senate,and President!! it took that spendthrift Ronald Reagan to get it up to $3.35/hr
11.25.2006 9:35am
Jacob (mail):
This seems like a silly approach to solving these "problems." The likelihood of both the President and VP leaving office before an additional VP can be nominated and confirmed is ridiculously small, and would occur only under the types of circumstances that would cause any further successor to be a little more bipartisan during her time in office, anyway. And if there's a problem with the way the Senate appoints its leaders, why not call for Senate reform (instead of line of succession reform)? In addition, why fret over the possibility a legislator might not match the president's politics but not acknowledge the possibility a Secretary of State might deviate as well. Changing this law seems like a way to get around the fact that "the people" don't elect the right legislators/vice-president, and "the legislators" don't elect the right leaders. If you trust the electorate and congress to vote, why not trust that they take the line-of-succession into account while doing so?
11.25.2006 10:09am
DMH (mail):
Let me get this straight. You object not merely because succession could run to another party but also because the current and soon-to-be PPT are 1. old and, 2. have performed political acts ensuring federal appropriations favor their states. Why don't we amend the constitution to impose an age limitation (I would say no one over 60) and a test to determine if the candidate has ever performed a self-interested political act for him/herself, state, or favored constituency? While we are at it we could also disqualify anyone who does not comport with any other political views Ilya Somin finds objectionable. Sounds right to me.
11.25.2006 10:39am
John (mail):
The notion that the House and Senate will yield this power is--how to put this delicately?--idiotic. Surely these professors have better things to spend their time on.
11.25.2006 11:08am
dearieme:
If you are so careless as to lose both POTUS and VPOTUS, perhaps office should revert to Her Britannic Majesty?
11.25.2006 11:27am
logicnazi (mail) (www):
The age concern is perfectly reasonable. Age per se is not a problem and an explicit age requirement would be counterproductive given the continued medical advances that make us healthier and active longer. But it is true that someone with failing health who is slowing down as a result of advanced age may not be able to work days with little sleep as may be required of a president during a crisis. Hence we rightly leave the deciscion of whether someone's advanced age or poor health makes them a bad choice for president up to the people, and it is a fact that they consider.

However, when the matter of succession comes up the people no longer get to make the judgement of whether the PPT is healthy enough for the job. Since there is no a priori reason that the PPT is the best choice for the job the increased likelihood that they will not be physically capable of handling the job during the sort of crisis that would allow them to assume the presidency is certainly a factor to consider.

To put it another way it seems this policy creates an unfair burden on old, long-serving senators. Rather than just show they can do their job properly they may have to also fend off worries that they would be unfit to be president if they would become the PPT. The people of this district should have the right to pick old senators to represent them without worrying that they would be a risk to the nation in a time of crisis.
11.25.2006 12:09pm
logicnazi (mail) (www):
Ohh, as for all the concerns that this isn't really a serious concern I present the following scenarios.

First, it isn't too hard to imagine a single attack by a terrorist or foreign power that takes out both the president or vice president. In the middle of such a crisis it would be disastrous if the president's arch enemy was forced to take over. For instance if Newt had to take over from Clinton he would have had to make the impossible choice of dealing with a major world crisis with an executive that was actively against him or trying to rebuild the government under him in the middle of such a crisis.

Second, what if both the president and vice president have engaged in some major wrongdoing, e.g., if Ford had been the mastermind behind the Watergate break in. It isn't hard to believe that both the president and vice president might be involved in the same dirty tricks and in such a situation surely we ought to impeach both rather than replacing one crook with another. But just imagine the problems we would have if a senate controlled by party A was voting to impeach a president and vice president of party B if the replacement was going to be of party A. Not only would accusations of political motives further could the issue but senators from both parties would face strong temptations to vote on something besides the evidence. I mean suppose Bush and Cheney were found to have been using NSA wiretaps for political advantage. Could a republican senator who genuinely believed Nancy Pelosi would gravely endanger our troops and harm national security vote to impeach? I don't know what the Senator is morally obligated to do in this sort of situation but I'm sure we ought to try and avoid putting them in this situation.

This isn't totally hypothetical. Look at the circus surrounding the impeachment of Andrew Johnson who was a democrat who would have been succeeded by a republican. In fact Johnson himself highlights the dangers of replacing a president of one party with that of another. If this ever happened again I suspect you would see similar fights over what the new president can do that would hamstring the government, something we can't afford in the situations it is likely to happen. Also, arguably the potential to replace the president with someone of another party encourages assassination attempts like Booth's.

--

Given these considerations why not let the president pick who is going to succeed him. After all the voters elected the president because they trust his judgement about how to run the executive branch, it seems the best way to respect the voter's decision and ensure continuity of government is simply to let the president issue an executive order setting the order of succession following the vice-president.

Of course it is reasonable to restrict the president's choice to members of his cabinet or some other small group of high level executive officers. However, it seems inefficient to tie the presidential succession to particular cabinet offices. The person who would make the best secretary of state simply might not make the best president.

I mean suppose we are at war and the president knows that the foreign power we are fighting is trying to kill him. It seems unfortunate to force the president to decide if he should assign his most trusted and most capable lieutenant to be secretary of defense where he can do the most good or make less efficient use of his talents as secretary of state in case the president and vice president are killed.
11.25.2006 1:16pm
logicnazi (mail) (www):
One more quick point.

Jacob,

I think you underestimate the importance of having good personal relationships with the people who make up your administration and the informal knowledge of how things work and who is good at what. All the bipartisan spirit in the world can't change the fact that Newt would have had a lot more difficulty leading Clinton's cabinet and executive officers than someone who was a member of Clinton's team. It isn't policy differences that matter so much as familiarity and personal relations.

Also people may have very different criteria for a good president as a good legislator. I'm happy with an ideological firebrand as speaker, I want the man who can send us into WWIII to be more pragmatic. In general I think we ought to separate roles that require potentially different skill sets.
11.25.2006 1:36pm
Ilya Somin:
why fret over the possibility a legislator might not match the president's politics but not acknowledge the possibility a Secretary of State might deviate as well.

Because the president picks the secretary of state, and is unlikely to select someone with views radically different from his own.
11.25.2006 2:25pm
Craig Oren (mail):
As many here are old enough to recall, this situation came closer to occuring twice. When Vice President Spiro Agnew resigned, House speaker Carl Albert became next in line for the Presidency. The same occurred when Gerald Ford became President after President Nixon's resignation.

The Wilkipedia article on Albert (sorry I'm too thumb-fingered to link it) says that he took the President that, if he became President, he would serve only as long as it took Congress to confirm a Republican vice-president, and Albert would then resign in his favor. (Of course, given that both Houses were Democratic, it might have taken a while to confirm a Republican.)

I once read that the 1947 legislation substituted the House Speaker for the Secretary of State as a tribute to House Speaker Sam Rayburn.

I have also read that, when President Kennedy was assassinated, a rumor swept Washington that Lyndon Johnson had also been shot. House Speaker John McCormack buried his face in his hands.
11.25.2006 2:40pm
Realist Liberal:
I know this is a side issue but what would happen if someone in line didn't meet the Constitutional requirements. For example if Nancy Pelosi was a naturalized citizen (I know she's not but let's pretend) and Bush and Cheney both became unable to fulfill the duties of the President, does Pelosi get skipped or do we ignore the Constitutional requirements?
11.25.2006 3:34pm
Ilya Somin:
I know this is a side issue but what would happen if someone in line didn't meet the Constitutional requirements. For example if Nancy Pelosi was a naturalized citizen (I know she's not but let's pretend) and Bush and Cheney both became unable to fulfill the duties of the President, does Pelosi get skipped or do we ignore the Constitutional requirements?

Hard to say what would actually happen (since courts are unlikely to invalidate a presidential succession), but legally speaking, the answer is that Pelosi would be skipped and (shudder) President Pro Temp Bob Byrd would become president.
11.25.2006 3:46pm
Some Guy.:
Why do you think the courts would not interfere with the succession of a person who does not meet the constitutional qualifications for the presidency? Do you think they would ignore the age requirement as well?
11.25.2006 4:00pm
Barry P. (mail):
At the present time, two cabinet members, Commerce Secretary Carlos Gutierrez and Labor Secretary Elaine Chao are not natural-born citizens. They are simply skipped over in the line of succession, much like Catholics are in the line for the British throne.
11.25.2006 4:17pm
Seamus (mail):

Not too long ago Strom Thurmond (as PPT) could have assumed the presidency at the tender age of 98.




In that case, we wouldn't have had all these problems over all these years. (IOW, Strom just wasn't ready to be president in 1948, but in 1998 . . . .)


I once read that the 1947 legislation substituted the House Speaker for the Secretary of State as a tribute to House Speaker Sam Rayburn.



Except that in 1947, the speaker wasn't Sam Rayburn, but Joseph Martin (R-Mass.). IOW, what some people here see as a bug (letting the presidency fall into the hands of someone from the opposite party from the late president) was seen by the 80th Congress (what Harry Truman used to call "the do-nothing 80th Congress") as a feature.
11.25.2006 4:57pm
Craig Oren (mail):
Seamus,

What you say about Rayburn makes sense. Wilkipedia, though, reports the Rayburn story, and says Truman wanted it that way. I have read the story elsewhere. But I agree it might not be true.
11.25.2006 5:31pm
Jacob (mail):
logicnazi-
I think you overestimate the cozy relationship a president has with his cabinet officers, if not the members of his own staff. In your hypothetical Newt would have disagreed with AG Reno a lot, but it's not like she and President Clinton were chums in the first place. The current administration has had many of its cabinet members and executive officers come clean after-the-fact about disharmony in the executive, but they all served at his pleasure while in office.

Not that I don't think conflict could arise between the new president and members of the old administration, but I believe these conflicts could be dealt with in much the same way they're dealt with already. Congress can remove some people from office, and the president can remove others.
11.25.2006 5:51pm
Jacob (mail):
And to address:
Also people may have very different criteria for a good president as a good legislator. I'm happy with an ideological firebrand as speaker, I want the man who can send us into WWIII to be more pragmatic. In general I think we ought to separate roles that require potentially different skill sets.
This seems perfectly reasonable. Similarly, I have specific criteria for the person I want as commander-in-chief, the person I want spearheading foreign policy, and the person I want wielding veto power over Congress. Unfortunately (for me) the Constitution gives all these powers to the same office-holder, so I'm forced to weigh these factors. I can't think of why I should be trusted balancing these but the Senate can't be trusted balancing the firebrand skills with remote-possibility-of-presidency.
11.25.2006 6:00pm
Greedy Clerk (mail):
the answer is that Pelosi would be skipped and (shudder) President Pro Temp Bob Byrd would become president.

Oh shudder!!! Robert Byrd is so scary; if he were President, he might get us bogged down in an unnecessary war, preside over the largest spending spree in history, preside over the biggest embarssment/tragedy in national history (the response to Katrina), ignore the Constitution's habeas corpus clause (see Justice Scalia dissenting in Hamdi v. Rumsfeld, etc.), wiretap US citizens without any judicial oversight, etc. I am shuddering in my boots. Oh yeah, Byrd was once a member of the KKK -- I'd rather have a current KKK member than the two jackasses who are President and Veep. . . . and I think plenty of Americans agree with me.
11.25.2006 6:04pm
Jacob (mail):
Because the president picks the secretary of state, and is unlikely to select someone with views radically different from his own.
I guess one can debate what constitutes "radically different," but the current president had a secretary of state whose views differed in certainly important areas of foreign policy. I think many would bet a lot of money any hypothetical presidential administration of that secretary of state would indeed be radically different from the current one.
(Sorry for the third post in a row)
11.25.2006 6:11pm
Greedy Clerk (mail):
Expanding on Jacob's point, note that some Presidents appoint high cabinet officers of other parties (see President Clinton's SecDef, Bill Cohen). So, the "other" party concern is over-stated. Of course, if Presidents follow in the mold of the current joke we have in the oval office, then I guess we won't see high cabinet officers of other parties very often again.
11.25.2006 6:16pm
Lev:
How about one of the justices of the SCt. A number of them seem to believe they are President and Congress all rolled into one already.
11.25.2006 6:22pm
Strom Thurmond (mail):
Byrd used the "N" word on a sunday talk show and wasn't even bein heckled, he should be forced to go on Letterman and apologize if he wants to continue in standup comedy.(and if you've seen any of Byrds senate speeches..its definately standup comedy)
11.25.2006 7:01pm
JDS:
The Speaker and President pro tem of the Senate are both elected officials. Cabinet Secretaries are appointed.

The Presidency of the US is a political job, and it's essential that a successor President have won some significant elective office.
11.25.2006 7:36pm
Craig Oren (mail):
JDS's comment reminds me of Sam Rayburn. Early in the Kennedy Administration, Rayburn was told by Lyndon Johnson(?) how brilliant President Kennedy's advisers were. Rayburn's response: "They may be just as intelligent as you say. But I'd feel a helluva lot better if just one of them had ever run for sheriff.
11.25.2006 8:44pm
A.S.:
By its very nature, the presidency pro temp is likely to be held by elderly and often infirm politicians. Senators who last for decades are also likely (by virtue of their seniority) to be heavily implicated in porkbarreling and other dubious practices of the world's greatest deliberative body. For these reasons, among others, the PPT should not be included in the line of presidential succession.

Of course, the easy fix here is to substitute the Majority Leader of the Senate for the PPT. Which seems correct anyway - the House Speaker is the leader of the House, but the Majority Leader, not the PPT, is the leader of the Senate.

Anybody know why the PPT was included, rather than the Majority Leader, in the first place?
11.25.2006 10:03pm
Aurelius (mail) (www):
As JDS points out, the current succession rules place an emphasis on elected officials as opposed to appointed staff. And given how quickly a VP could be appointed, it would be an extreme situation that presented a situation where the President and the VP were both taken out of action.
In such an extreme position, it is difficult to imagine that whatever threat existed would be met with other than bipartisan support, thereby making party alignment less of an issue.
Politics is also a game of unwritten rules and conventions. It is difficult to imagine one party's President &VP being taken out, then an opposing Speaker taking the Oval Office, and NOT taking actions as soon as is viable to "re-balance" the game by arranging the original party's control being re-established. Because the reason a lot of politicians act one way is that they'd like their opponents to act the same way in their shoes. Politicians from all sides play the long game, and will rarely take an advantage today that will turn against them with bigger effect tomorrow.
11.26.2006 8:40am
Mr. X (www):
Why is this a problem?

The Speaker of the House is the highest ranking member of the people's house of Congress, thus representative of the majority of Americans (potentially more so than the President, due to the Electoral College). Doesn't it make more sense for the Presidency to devolve on her than on a selected diplomat (Secretary of State)?
11.27.2006 10:59am
dougjnn (mail):
This Ilya Somin post is thoroughly idiotic. It discusses ideas as though they were perfect discrete platonic ideals, these absolute crystalline spheres, and then draws rigidly step by step deductions accordingly, in fact. The style of reasoning is by terms reminiscent of the dialectical or medieval scholasticism. What it surely isn't is empirical, nuanced or balanced.

Lya Somin informs us:
The realist theory of international relations, of which Mearsheimer and Walt are among the leading academic advocates, claims that the structure of a state's domestic politics has little or no impact on its foreign policy, especially on vital security issues.

She says "little or no" impact on foreign policy, and then proceeds to spin out her logical argument based on a substituted stark "No".

As well of course even her "little or no" impact is an exaggeration of what all but the most extreme realists believe. What ties them together is believing it's profitable to examine the foreign policy interplay between states AS THOUGH domestic politics didn't matter and then see how much that explains -- the common realist point being that it often explains surprisingly much, rather than it always explains everything. As well the other side of the realist argument is the normative one. They argue that national self interest divorced of domestic sentiment (idealism) SHOULD play the largest part in foreign policy decisions -- in order to avoid becoming more vulnerable than necessary and diluting national strength, that is in order to best secure national objective self interest, and the like. This preference as well is of course rarely absolute. Few realists believe that foreign policy should be completely amoral, and fewer still that it should appear to be.

In any event, the normative "should" obviously contemplatess that the advice might not be taken and that sometimes domestic idealist or moralist concerns, sometimes even of a vocal or disproportionately powerful minority, can lead a state away from it's realist assessed self interest.

Contrary to Somin's deductions from her absurdly oversimplified premise about what constitutes a "true" foreign policy realist, the Mearsheimer and Walt thesis is perfectly consistent with realist analysis. Their thesis that is, that the Israeli lobby in its various manifestations has exerted sufficient domestic political pressure on a foreign policy issue that's not at the top of most American's agenda and is understood in a generally heavily filtered way, such that the country fails to purse it's overall national self interest in Middle Eastern affairs in a way that's becoming increasingly dangerous. The highly exaggerated way that many in the Muslim world put it is: 'America grossly and unjustly favors Israel no matter what she does because America is controlled by the Jews. America is therefore the enemy of Muslims and must be made to pay the price.' A caricature of course but not without some elements of truth.

If there are even some elements of truth, what is the remedy? Sunlight. Simply sunlight. Nothing more and nothing less. Free discussion, and an effort by some to reduce the influence by calling attention to it. The remedy more broadly? Resistance to what is surely by now the extreme overuse (and tacit permission by the rest of America to overuse) of the "anti-Semitism" charge to shield the most successful and per capita powerful ethnic group in America from any close examination of instances of group special pleading and self dealing. There's nothing unusual about special group interests and pleadings in America -- except the taboo against discussing and criticizing it in this group as in other powerful ones. By way of contrast, neither the Christian Right nor northern WASPs are now or ever have been immune from group criticism whether justified, arguably justified, or wholly unjustified. No powerful social taboo has blocked vigorous efforts at washing those groups (or supposed group efforts) with exposure and sunshine. Well the anti-Semitism taboo at least in America needs to now only be given legitimacy in cases of extensive and clear cut bigotry. Otherwise it's crying "wolf" on the part of an extremely well armed and highly placed interest group.
11.27.2006 3:22pm
Mr. X (www):
This Ilya Somin post is thoroughly idiotic. It discusses ideas as though they were perfect discrete platonic ideals, these absolute crystalline spheres, and then draws rigidly step by step deductions accordingly, in fact. The style of reasoning is by terms reminiscent of the dialectical or medieval scholasticism. What it surely isn't is empirical, nuanced or balanced.
...
She says "little or no" impact on foreign policy, and then proceeds to spin out her logical argument based on a substituted stark "No".
....


1) Ilya is a dude and probably doesn't like being referred to as "she."

2) You're responding to the wrong post.
11.27.2006 4:55pm
markm (mail):
"The likelihood of both the President and VP leaving office before an additional VP can be nominated and confirmed is ridiculously small..." Or maybe not. In 1973, with the President (Nixon) already facing an impeachment inquiry in the House, an old corruption case finally caught up with the VP (Spiro Agnew), and he resigned. Fortunately, Nixon was a man who knew how to lose gracefully, and he picked a VP and probable successor (Ford, then a Senator, IIRC) who could sail right through the Senate confirmation hearings, so we had a new VP by the time Nixon also had to resign. If Nixon had been otherwise, he could have played for time with a long string of thoroughly unacceptable VP nominees, leaving the congressional Democrats with the choice of leaving him in office or forcing him out with no VP. If you think the political fallout from Watergate was bad, just think of the recriminations that would have resulted from a Democratic Congress replacing a Republican President with their own leader (the Speaker of the House).
11.27.2006 6:14pm