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Presidential Succession Problems with Acting Cabinet Secretaries and Decrepit Senators

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,’ on Saturday
Part 2: Cabinet secretaries versus members of Congress in the line of presidential succession, on Sunday.

Yesterday, The Jack News explored one of the major flows with the Presidential Succession Act: Can both cabinet secretaries and member of Congress be included in the list of presidential succession beyond the president and vice president?

That’s not the only flaw in the Presidential Succession Act. Another serious problem is the ambiguity over whether or not acting cabinet secretaries are in the order of succession or not.

Does the acting secretary of state take priority to the actual secretary of agriculture?

Like the presidency itself, each cabinet department has its own internal order of succession, providing who becomes the acting department head in the event of a vacancy. In most cases, it’s a deputy secretary who is next in line, followed by other senior political appointees.

The current wording of the law is vague. It seems to imply that acting secretaries are eligible, so long as they were previously confirmed by the Senate to their lower position. Acting secretaries have said they were told that they were, in fact, in the order of succession.

An alternate interpretation is that the clause about Senate confirmation refers to being Senate-confirmed as the top-level department head and cabinet position, not Senate-confirmed to a lower office.

The federal government has never officially taken a public position on which of these interpretations is correct. This raises the possibility that the deputy secretary of state, automatically bumped up to acting secretary of state in the event of the death of the secretary of state, could take precedence over lower-ranked members of the cabinet, like the secretary of agriculture.

This result is counter-intuitive and isn’t how most people think the list of presidential succession works. But it’s the logical implication if acting secretaries are eligible for inclusion.

Is it good for a decrepit senator to be third in line for the presidency?

As with the dispute about including members of Congress, this is not the sort of fight that we would want being played out during a national emergency, possibly in the aftermath of a catastrophic terrorist or nuclear attack on the United States.

But there’s one more serious problem with the current order of succession. It concerns that obscure office on the list of presidential succession between between the speaker of the House and the secretary of state: The president pro tempore of the Senate.

The president pro tempore is a purely ceremonial designation. By tradition it is granted to the senior senator of the majority party. In practice, the Senate is run by the majority leader, currently Mitch McConnell of Kentucky. But as the longest serving Republican, Utah Sen. Orrin Hatch is currently the “pro tem.”

The problem is that the most senior majority-party member of the Senate is often very senior.

By the standards of the position, 83-year-old Hatch is practically youthful. In 2002, former segregationist Strom Thurmond was President pro tem on his 100th birthday. In recent years, Democrats Robert Byrd of West Virginia and Daniel Inouye of Hawaii both died in office while holding the title, at the ages of 92 and 88, respectively.

It’s understandable that the Senate chooses to honor its longest-serving members with a prestigious ceremonial title. It’s much less understandable why a position that is so often held by extremely elderly legislators in declining health, is third in line to the presidency.

Reforming the Presidential Succession Act is long overdue.

The topic occasionally gets some attention from members of Congress, but there is no special-interest constituency behind the issue. It’s a matter of simple good governance and prudent planning, which may explain why Congress has not yet acted.

The good news is that there are easy fixes, and a simple bipartisan statute now could save the nation from an ugly crisis later.

First, the Speaker of the House and the President pro tempore of the Senate should be removed from the order of succession. This was the law from 1886 until 1947, and there are good reasons to go back to that policy.

Aside from the constitutional doubts over including members of Congress (including the doubts voice by James Madison, and explored in Part 1 of this series), putting these legislators in the line of succession greatly increases the likelihood of the White House changing parties without an election.

The senior members of the executive branch are far better-prepared to assume the presidency on short notice, and are also more likely to share the policy agenda of the president who appointed them.

Second, it should be made clear that acting heads of department are not in the order of succession ahead of the chiefs of other cabinet departments.

Sub-cabinet officials do not have the political legitimacy or prominence to justify putting them in the top job. Including them also raises too many possibilities for an unclear result as to who has become the new president.

Additionally, we need to include government officials outside of Washington on the presidential succession list

A third and final reform that has been proposed would be to expand the list to include government officials outside of the Washington area. Given the potential of a nuclear strike on the nation’s capital, such a move would be well-advised.

There are currently fifteen members of the cabinet on the list. At the end of that list could be appended the ambassador to the United Nations (in New York City), as well as the ambassadors to major allies like the United Kingdom, France, and Canada.

Alternately, the list could include a handful of specified U.S. Attorneys, the powerful federal prosecutors who are scattered around the country in each of ninety-four judicial districts.

Hopefully, the Presidential Succession Act is a law that we’ll never have to implement. Since the 25th Amendment provided a way to fill vice-presidential vacancies by appointment, it’s less likely that office will ever go empty for an extended period of time.

But it’s important enough to get it right, and Congress should promptly fix its defects and ambiguities.

(President Donald Trump, House Speaker Paul Ryan, R-Wisconsin, and Vice President Mike Pence walk down the House east front steps after the annual Friends of Ireland luncheon at the Capitol March 16, 2017, after a celebration of St. Patrick’s Day. Photo by Alex Wong/Getty Images.)

JACK is a friend, who points out the hidden flaws to the unobvious argument. A pragmatic fictitious charter, JACK is prone to satire and may explore the realm of fake news in any given article. A fun and comedic writer whose purpose is to both enlighten and lighten the otherwise stressful discussion of politics and current events.

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