Editor’s Note: “A Crisis Waiting to Happen: The Jack News Investigates Presidential Succession,” is a series consisting of two parts.
Part 1: Presidential succession beyond ‘Designated Survivor’
Part 2: Cabinet secretaries versus members of Congress in the line of presidential succession
ABC’s hit show Designated Survivor has brought new attention to an obscure area of American law. The rules of presidential succession have long provided fodder for fiction writers, but the actual law is riddled with flaws and contradictions that could easily result in an all-too-real constitutional crisis.
In the show, Kiefer Sutherland of 24 fame plays Tom Kirkman, a low-ranking member of the cabinet about to be quietly pushed aside and replaced. But during a presidential address to Congress, Kirkman is chosen to stay away from the Capitol as the eponymous designated survivor: A person who can become president if the worst happens.
This being television, the worst of course does happens: A terrorist attack leaves the president, vice president, all the other members of the cabinet and most of Congress dead.
On Designated Survivor at least, it’s a simple order of succession
The show does not spend much time worrying about the legalities. Kirkman, as the highest-ranked survivor in the order of succession, is promptly sworn in as the new president. The action proceeds from there.
In reality, presidential succession might not be so simple. Legal scholars have expressed concern for years over possibly fatal flaws in the Presidential Succession Act.
What should be a simple, straightforward matter is instead fraught with vague statutory language and conflicting interpretations of the Constitution.
Indeed, the current rules of presidential succession are a constitutional crisis waiting to happen. There are too many ways the law could fail, up to and including situations that lead to multiple individuals claiming to be the legitimate President of the United States.
Some of the problems with the list of presidential succession are playing out before our eyes, albeit on a minor scale.
In the case of the Friday’s resignation of the director of the Consumer Financial Protection Board, for example, should the agency’s deputy director become the acting director of the agency? Or should President Trump be permitted to appoint whomever he wants on an interim basis, pending Senate confirmation?
After a real crisis, presidential succession is more complicated
The Constitution provides a starting point. Most Americans are familiar with the process: If the president dies or is removed from office, then the vice president becomes president. It’s happened nine times in American history, starting with John Tyler succeeding William Henry Harrison when the latter died just a month into his term.
Tyler’s exact status was disputed. Some held that he was merely the acting president, or that maybe a special election should be held for the remainder of the term. This provoked a brief crisis, including Tyler refusing to answer letters addressed to the acting president instead of simply the president.
After a bit of back and forth, Congress confirmed this interpretation, which was later codified in the 25th Amendment. Tyler served the remainder of Harrison’s term until the next regularly scheduled presidential election.
Vice-presidential succession then, is clear and no longer in any dispute over how it works. Vice Presidents also carry a certain legitimacy, being elected alongside the President with the understanding that preparing for the worst is part of the deal.
It’s when you go further down the list that things can start to get problematic.
In 1947, Congress updated presidential succession for the nuclear age
The Constitution says that in the event that both the presidential and vice-president are out of the picture, then Congress provides by law a list to determine who is next in line. Critically, the people on this list must be “officers” of the United States.
The current law was passed in 1947, and provides that after the vice president comes the speaker of the House, and then the president pro tempore of the Senate, followed by cabinet secretaries in the order in which the office was created – beginning with the secretary of state. Hence at the bottom of the list is the most recently-created cabinet position, the secretary of homeland security.
Altogether, there are 17 people on the list after the vice president, which seems redundant enough for even the worst catastrophe. But that’s not the end of it.
When the original Presidential Succession Act was passed by the first Congress, no less an authority than the Father of the Constitution himself, James Madison, voiced concern that members of Congress were not eligible to be included. That is because the Constitution prohibits Representatives and Senators from holding “any office under the United States.”
This semantic quibble holds that members of Congress can therefore not be one of the “officers” designated to act as president if both of the top offices are vacated. This is not just a theoretical concern, either.
The 25th Amendment, ratified in 1967, made it easier to get a new vice president
Prior to the ratification of the 25th Amendment in 1967, there was no way to fill a vacancy in the vice-presidency. When the incumbent vice president died, resigned, or became president, the office was simply left vacant until it was filled at the next election.
This little issue became quite significant in 1868, when Andrew Johnson – who had only been elected as vice president, and yet became president upon the assassination of Abraham Lincoln – became the first president to be impeached.
At the time, the president pro tem of the Senate was ahead of the Speaker of the House in the line of presidential succession. That is the opposite of their current ordering. As the vice-presidency was also vacant, the person next-in-line to succeed Johnson – should he have been removed – was one of the senators with a vote in his impeachment trial for conviction and removal from office.
Indeed, in his 2012 book, Constitutional Cliffhangers, law professor Brian C. Kalt lays out a hypothetical scenario in which the Secretary of State could lay claim to the presidency, disputing the eligibility of the speaker of the House to assume the office after both the president and vice president are killed.
With the possibility that partisan control of the oval office could be at stake, it’s a dispute that could easily spiral out of control.
Tomorrow: Succession problems with acting cabinet secretaries and decrepit senators
(Actor Kiefer Sutherland speaks onstage during the 68th Annual Primetime Emmy Awards at Microsoft Theater on September 18, 2016, in Los Angeles, California. Photo by Kevin Winter/Getty Images.)