[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
PRESIDENTIAL SUCCESSION ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
OCTOBER 6, 2004
__________
Serial No. 110
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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OCTOBER 6, 2004
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan..................................... 42
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 43
WITNESSES
Mr. Thomas H. Neale, Project Management Coordinator, Government
and Finance, Congressional Research Service, Library of
Congress
Oral Testimony................................................. 4
Prepared Statement............................................. 5
Mr. Akhil Reed Amar, Southmayd Professor of Law and Political
Science, Yale Law School
Oral Testimony................................................. 33
Prepared Statement............................................. 34
Mr. M. Miller Baker, Partner, McDermott Will & Emery
Oral Testimony................................................. 37
Prepared Statement............................................. 39
The Honorable Brad Sherman, a Representative in Congress from the
State of California
Oral Testimony................................................. 43
Prepared Statement............................................. 45
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Cornyn, a U.S. Senator
from the State of Texas........................................ 48
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve King, a Representative
in Congress from the State of Iowa............................. 61
PRESIDENTIAL SUCCESSION ACT
----------
WEDNESDAY, OCTOBER 6, 2004
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:40 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Chabot
(Chair of the Subcommittee) presiding.
Mr. Chabot. The Subcommittee will come to order. This is
the Subcommittee on the Constitution.
The purpose of this hearing is to explore the need for
changes to the Presidential Succession Act, the Federal statute
that governs the transfer of power in the event that there is a
simultaneous vacancy in the office of the presidency and the
vice presidency.
I would like to thank our witnesses for being here today.
In particular, I would like to recognize our colleague, Mr.
Sherman, who has remained steadfast in his pursuit to ensure
that there is continuity in our Government should these offices
become vacant.
The House has already acted to address vacancies in the
House of Representatives by passing H.R. 2844, the ``Continuity
in Representation Act,'' which would require expedited special
elections in the event that there were over 100 vacancies in
the House. That legislation passed on an overwhelmingly
bipartisan basis by a vote of 306 to 97 approximately 5 months
ago. The Senate has not yet acted on the bill.
Today we turn our attention to our continuity in Government
relative to the presidency.
Article II, section 1, clause 6 of the Constitution, the
``Succession Clause,'' specifies that in the event of
simultaneous vacancies in the presidency and the vice
presidency, or the simultaneous ``inability'' of those officers
to act, Congress may by law specify what ``Officer'' shall
``act as President until the disability be removed or a
President shall be elected.'' If a statutory successor is
serving as acting President, Congress may, but is not required
to, call a new presidential election.
Congress has exercised its power to designate statutory
presidential successors three times in U.S. history.
First in 1792, Congress designated two congressional
officers as statutory presidential successors after the Vice
President: first the President pro tempore of the Senate, and
then the Speaker of the House. The 1792 act provided that these
officers would ``act'' as president pending a special
presidential election, which the 1792 act provided for.
Then in 1885, Democratic President Grover Cleveland's Vice
President, John Hendricks, died in office. Because Congress was
out of session, there were no statutory successors to ``act''
as President in the event the President died or was otherwise
able to discharge his duties. After Congress reconvened, the
Presidential Succession Act was amended to provide that after
the Vice President, the line of succession would begin with the
Secretary of State and would continue through the Cabinet
department heads in the order of departments' creation. The
amendment took the President pro tem along with the House
Speaker out of the line of succession and replaced them with
the President's Cabinet. The 1886 Act provided that a statutory
successor would immediately convene Congress, if it were not
already in session, which could then decide whether to call a
special presidential election.
Seventy years later, President Truman believed that if he
and his Vice President were unable to complete Franklin
Roosevelt's last term, an elected official rather than the
unelected Secretary of State should act as President. Within a
few months of taking office in 1945, Truman proposed
legislation providing for the House Speaker and President Pro
Tem of the Senate, in that order, to again be placed in the
statutory line of succession, this time ahead of the Cabinet
officers. The resulting Presidential Succession Act of 1947 is
the governing law today.
In the event neither a House Speaker nor a President pro
tem of the Senate decided to accept the acting presidency,
section 19(d) of the act provides that the Cabinet member who
is highest on the specified list shall act as President,
provided that the Cabinet member has been confirmed by the
Senate. The order of succession proceeds down this list in the
event that a Cabinet position is vacant or its incumbent is
unable or unwilling to assume the acting presidency.
Under the 1947 act, a Cabinet successor serving as acting
President is subject to dismissal and replacement at will by
either the Speaker or the President pro tem if at any time
either one decides to assume the acting presidency themselves.
Commentators have pointed out that certain problems exist
with the Presidential Succession Act in its current form should
there ever be a simultaneous vacancy in the presidency and the
vice presidency. For example, the act as currently written does
not place anyone in the line of succession who is not based in
the D.C. Metro area much of the time. The act as written also
poses a risk of change in party control of the presidency
should its provisions be triggered.
Similar to our consideration of the Continuity in
Representation Act, I believe it is worth noting that one of
the most effective ways we can fight back against terrorism is
to demonstrate that our system of Government will continue,
both consistently and legitimately. But we must be certain that
the provisions in place to address such situations are
consistent with our Constitution and our democratic principles.
The Subcommittee looks forward to exploring these issues,
other questions, and potential remedies during the hearing
today to ensure that our system of Government is prepared to
continue on in the unfortunate event that vacancies occur in
the presidency and vice presidency.
We want to again thank the witnesses, and I would ask any
other panel Members if they like to make an opening statement?
Both the Republican and the Democratic sides have
conferences that are going on and we expect that Members will
arrive as the time goes by, and of course, the written
testimony of all the witnesses will be made available, and I am
sure that each Member will studiously review that.
I would now like to introduce our witness panel. Our first
witness today is Thomas H. Neale. Mr. Neale was appointed to
the staff of the Library of Congress in 1970 and joined the
Congressional Research Service, the CRS, in 1971, where he
currently serves as Project Manager Coordinator for the
Government and Finance Division. As Project Management
Coordinator, he performs duties in the fields of
administration, review and research and analysis. His research
and analysis portfolio currently includes U.S. elections with
concentration on the presidency and the Electoral College, U.S.
presidential and vice presidential succession, qualifications,
terms and tenure and disability, and U.S. constitutional
history and theory. We welcome you here this morning, Mr.
Neale.
Our second witness is Professor Akhil Reed Amar, the
Southmayd Professor of Law at Yale Law School, where he teaches
among other things constitutional law and American legal
history. He has written extensively on the Presidential
Succession Act. We welcome you here this morning, Professor.
Our third witness is M. Miller Baker, a partner at the law
firm of McDermott Will & Emery, where he practices
constitutional law. Previously, Mr. Baker served as counsel to
Senator Orrin G. Hatch on the U.S. Senate Judiciary Committee,
and as attorney advisor in the Office of Legal Policy, and
later as special assistant to the Assistant Attorney General
for Civil Rights at the Justice Department. And we welcome you
here this morning, Mr. Baker.
Our final witness this morning will be the Hon. Brad
Sherman, who represents the 27th District of California in the
U.S. House of Representatives. Mr. Sherman serves on the
Committee on International Relations, the Committee on
Financial Services and the Committee on Science. He has spoken
and frequently written about the Presidential Succession Act,
and he has introduced a bill, H.R. 2749, the Presidential
Succession Act of 2003 that would allow the President to choose
between possible successors in the event there is neither a
President nor Vice President to discharge the powers and duties
of the presidency. We welcome you here as well, Congressman
Sherman.
It is the practice of the Committee to swear in all
witnesses who are appearing before it, so if each of you would
please stand and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. Thank you very much.
We would also like to point out that we have a lighting
system which there is one there and one there. We would request
that you confine your testimony as closely as possible to 5
minutes, so we will be a little lenient on that on occasion.
But when you have 1 minute to wrap up, the yellow light will
come on and then the red light will mean that your 5 minutes is
up, and we ask that you summarize at that time if possible.
If there is no further business, we will begin with Mr.
Neale. Mr. Neale, you have 5 minutes.
TESTIMONY OF THOMAS H. NEALE, PROJECT MANAGEMENT COORDINATOR,
GOVERNMENT AND FINANCE, CONGRESSIONAL RESEARCH SERVICE, LIBRARY
OF CONGRESS
Mr. Neale. Mr. Chairman, thank you for giving me the
opportunity to appear before the Subcommittee this morning. I
have prepared testimony in the form of my report, Presidential
and Vice Presidential Succession: Overview and Current
Legislation, which is available for inclusion in the record.
Mr. Chabot. Could you pull the mike a bit closer to you,
sir?
Mr. Neale. Certainly.
The Presidential Succession Act, as modified by the 25th
amendment to the Constitution, received its most recent major
revision by Congress in 1947. Aside from lingering questions,
the succession issue was largely regarded as a settled matter
until after the terrorist attacks of 2001. This series of
events, as many observers note, has changed everything. In the
case of succession to the presidency it caused new or renewed
awareness of the Succession Act's provisions and the lingering
controversies surrounding them. It also raised concerns about
the need for continuity in the Executive Branch in the event of
a mass terrorist attack on the leadership of the United States.
I hope to highlight some of these concerns for you this
morning from the hardy perennials to those that have been
generated by the events of the past 3 years.
Among the Committee's oversight functions is what might be
called the housekeeping function. First on the list is the fact
that the Succession Act, as it currently stands, is one
position short on the list of successors to the President and
Vice President. The Office of the Secretary of Homeland
Security has yet to be included in the act. Over the years,
newly-created Cabinet level offices have been included in the
line of succession by statute, sometimes in legislation
creating the department, and sometimes at a later date. There
is, however, an additional issue in the current situation. It
has been customary for these newly-created Cabinet positions to
be inserted at the end of the line of succession. The question
now is, should the Office of Secretary of Homeland Security be
inserted higher up in the line of succession? As Senate Bill S.
148, which has been referred to the Subcommittee, would place
the Secretary of Homeland Security immediately behind the
Attorney General, making this officer fifth in the Cabinet line
of succession.
Next are the hardy perennials. First among these is whether
the Speaker of the House and the President Pro Tem of the
Senate are officers in the sense intended by article II of the
Constitution. Are they therefore constitutionally eligible to
succeed to the presidency? There has been a simmering
controversy over this question for many years. A second
question is more political or perhaps philosophical: should the
officers in line to succeed the President and Vice President be
elected Members of the House and Senate, as currently provided,
or should we return to the Succession Act of 1886 and put
appointed Cabinet officers at the top of the list? Further,
what is the role or value of party continuity in such
circumstances? A third question concerns the supplantation of
an acting President or bumping, to use the vernacular. Under
the 1947 act any person serving as acting President can be
supplanted or bumped from the acting presidency by an officer
higher in the order of succession. Finally, the act requires
that any Cabinet officer, by serving as acting President,
automatically vacates his Cabinet position. What effect does
this provision have on the willingness of Cabinet secretaries
to serve temporarily as acting President?
In the post 9/11 era, new concerns about presidential
succession have also arisen, mostly centered on asserted gaps
or soft spots in our succession procedures. Many observers have
speculated that a mass decapitation of the Congress and key
officers of the Executive Branch would leave the Nation
leaderless in a time of crisis. Many proposals have been
offered to cover general and specific instances arising from
such an attack. Some have urged legislation creating a number
of standby officials, essentially secretaries without
portfolio, who would be included in the line of succession, and
whose sole purpose would be to be prepared and available to
succeed in the event of a mass terrorist attack. Other
proposals would seem to close the gaps that occur whenever we
have a change of Administration. These would promote informal
revisions in Cabinet nomination and proposal procedures so that
a newly-inaugurated President would have a full or nearly full
Cabinet in place when the President takes the oath.
Finally, there is the related question not covered directly
under the Succession Act which concerns the question of
succession of presidential and vice presidential candidates
during our lengthy election process. One of the chief issues
here is when do the winning candidates become President- and
Vice President-elect?
I thank the Chairman and the Subcommittee Members for their
attention and I would be happy to answer your questions.
[The prepared statement of Mr. Neale follows:]
Prepared Statement of Thomas H. Neale
Mr. Chairman, thank you for giving me the opportunity to appear
before the subcommittee this morning. I have prepared testimony in the
form of my report, Presidential and Vice Presidential Succession:
Overview and Current Legislation, which is available for inclusion in
the record.
The Presidential Succession Act, as modified by the 25th Amendment
to the Constitution, received its most recent major revision by
Congress in 1947. Aside from lingering questions, the succession issue
was largely regarded as a settled matter until after the terrorist
attacks of 2001. This series of events, as many observers note, has
``changed everything.'' In the case of succession to the presidency, it
caused new, or renewed awareness of the Succession Act's provisions and
the lingering controversies surrounding them. It also raised concerns
about the need for continuity in the executive branch in the event of a
mass terrorist attack on the leadership of the United States.
I hope to highlight some of these concerns for you this morning,
from the ``hardy perennials,'' to those that have been generated by the
events of the past three years.
Among the committee's oversight concerns is what might be called
the ``housekeeping'' function. First on the list is the fact that the
Succession Act, as it currently stands, is one position short on the
list of successors to the President and Vice President: the office of
Secretary of Homeland Security has yet to be included in the Act. Over
the years, newly created cabinet-level offices have been included in
the line of succession by statute, sometimes in legislation creating
the department, and sometimes at a later date. There is, however, an
additional issue in the current situation: it has been customary for
these newly cabinet positions to be inserted at the end of the line of
succession. The question now is, should the office of Secretary of
Homeland Security be inserted higher up in the line of succession.
Senate bill S. 148, which has been referred to the subcommittee, would
place the Secretary of Homeland Security immediately behind the
Attorney General, making this officer fifth in the Cabinet line of
succession.
Next are the ``hardy perennials.'' First among these is whether the
Speaker of the House of Representatives and the President Pro Tempore
of the Senate are ``officers'' in the sense intended by Article II of
the Constitution. Are they constitutionally eligible to succeed to the
presidency? There has been a simmering controversy over this question
for many years. A second question is more political, or perhaps
philosophical: should the officers in line to succeed the President and
Vice President be elected Members of the House and Senate, as currently
provided, or should we return to the Succession Act of 1886, and put
appointed Cabinet officers at the top of the list? Further, what is the
role or value of party continuity in such circumstances. A third
question concerns supplantation of an Acting President, or ``bumping,''
to use the vernacular. Under the 1947 Act, any person serving as Acting
President can be supplanted or bumped from the acting presidency by an
officer higher in the order of succession. Finally, the Act requires
that any Cabinet officer, by serving as Acting President, automatically
vacates his Cabinet position. What effect does this provision have on
the willingness of Cabinet secretaries to serve temporarily as Acting
President?
In the post 9/11 era, new concerns about presidential succession
have also arisen, mostly centered on asserted gaps or soft spots in our
succession procedures. Many observers have speculated that a mass
``decapitation'' of the Congress and key officers of the executive
branch would leave the nation leaderless in a time of crisis. Many
proposals have been offered to cover general and specific instances
arising from such an attack. Some have urged legislation creating a
number of ``standby'' officials, essentially secretaries without
portfolio who would be included in the line of succession, and whose
sole purpose would be to be prepared and available to succeed in the
event of a mass terrorist attack. Other proposals would seek to close
the gaps that occur whenever we have a change of administration. These
would promote informal revisions in Cabinet nomination and proposal
procedures, so that a newly inaugurated President would have a full, or
nearly full, Cabinet in place when the President takes the oath.
Finally, there is a related question, not covered directly under
the Succession Act, which concerns the question of succession of
presidential and vice presidential candidates during our lengthy
election process. One of the chief issues here is when do the winning
candidates become President- and Vice President-elect.
I thank the chairman and the subcommittee Members for their
attention, and I would be happy to answer any questions.
ATTACHMENT
Mr. Chabot. Thank you very much.
Professor Amar?
TESTIMONY OF AKHIL REED AMAR, SOUTHMAYD PROFESSOR OF LAW AND
POLITICAL SCIENCE, YALE LAW SCHOOL
Mr. Amar. Thank you, Mr. Chair.
The current Presidential Succession Act is in my view a
disastrous statute, an accident waiting to happen. It should be
repealed and replaced.
First, section 19 violates the Constitution's Succession
Clause, article II, section 1, paragraph 6, which authorizes
Congress to name an officer to act as President in the event
that both the President and the Vice President are unavailable,
as the Chair has quoted from the Constitution. The House and
Senate leaders are not officers within the meaning of the
Succession Clause. Rather, the framers clearly contemplated
that the Cabinet officer would be named as acting President.
This is not merely my personal reading of article II. It is
also James Madison's view, which he expressed forcefully while
a Congressman in 1792.
Second, the act's bumping provision, which has just been
referred to, section (d)(2), constitutes an independent
violation of the Succession Clause, which says that an officer
named by Congress shall ``act as President . . . until the
Disability be removed, or a President shall be elected.'' The
bumping clause instead says, in effect, that the successor
officer shall act as President until some other suitor wants
the job. Bumping weakens the presidency itself and increases
instability and uncertainty at the very moment when the Nation
is most in need of tranquility.
Even if I were wrong about these constitutional claims,
they're nevertheless substantial ones. The first point comes
directly from James Madison, Father of the Constitution, who
helped draft the clause. Over the last decade many citizens and
scholars from across the ideological spectrum have told me that
they agree with Madison about the constitutional questions
involved. If, God forbid, America were ever to lose both their
President and Vice President, even temporarily, the succession
law should provide for unquestioned legitimacy to the officer
who must then act as President. With so large a constitutional
cloud hanging over it, the current law fails that test, the
legitimacy test.
In addition to these constitutional objections, there are
some real policy problems. First, the requirement that the
acting President resign his previous post makes this law a very
awkward instrument in situations of temporary disability. It
runs counter to the approach of the 25th amendment, which
facilitates smooth handoffs back and forth in situations of
short-term disability, such as, say, scheduled surgery. Second,
it creates a variety of the current law--it creates a variety
of perverse incentives and conflicts of interest, warping
Congress's proper role in impeachment and confirmation of Vice
Presidential nominees under the 25th amendment. It can upend--
and this is a third point--the results of a presidential
election. Americans vote for Party A to control their White
House and they end up with Party B. Here too, the current law
is in real tension with the later 25th amendment, which enables
a President to basically hand pick his successor, and thereby
promote a certain party continuity. Additionally, the current
law provides no mechanisms for addressing a arguable vice
presidential disability, and that's especially key because
under the 25th amendment the Vice President is really the pivot
point for determining presidential disability questions. Fifth,
as mentioned, the current law fails to deal with certain
windows of special vulnerability immediately before and after
the presidential election.
In short, the current law violates article II and is out of
synch with the basic spirit and structure of the 25th
amendment, which became part of the Constitution two decades
after this statute.
The main argument against Cabinet succession is that
presidential powers should go to an elected leader, not an
appointed underling. But the 25th amendment offers this
alternative attractive model of handpicked succession: from
Nixon to Ford to Rockefeller, with the President naming the
person who will fill in for him and complete the term that he
was elected to discharge if he's unable to do it himself. The
25th amendment, of course, doesn't give the President carte
blanche. There has to be a confirmation process in which this
House is involved along with the Senate in a special process
that confers legitimacy upon the nominee.
So if this is the model for sequential double vacancy when
the vice presidency and the presidency become vacant at
slightly different times, we should use an analogous approach
if the two offices become simultaneously vacant. There are
basically two approaches that I would suggest that the
Committee consider.
Under one, Congress could create a new Cabinet post of
Assistant Vice President for a Secretary, something like that,
named by the President, confirmed by the Senate, a very high-
visibility process. Presidential nominees would in effect tell
the American people, even as they are running, who not only
their Vice President, who their running mate is, but who they
plan to name for this second in line, and the election itself
would confer some legitimacy on that person.
It the Committee were disinclined to go that option, it
could name a Cabinet officer, the Secretary of State or any
other, to be first in line.
Either of these solutions cure the problems I've
identified, and here I'll just conclude. They would clearly be
officers so there's no constitutional problem. Bumping could be
eliminated. There would be no resignation that would need to be
required, and so you could have smooth handoffs back and forth
in temporary disability situations. Congressional conflicts of
interest can be avoided, and continuity in the Executive Branch
would be preserved, and legitimacy enhanced.
Thank you.
[The prepared statement of Mr. Amar follows:]
Prepared Statement of Akhil Reed Amar
Thank you, Mr. Chair. My name is Akhil Reed Amar. I am the
Southmayd Professor of Law and Political Science at Yale University,
and have been writing about the topic of presidential succession for
over a decade. On two previous occasions--in February 1994, and in
September 2003--I have offered testimony on this topic before the
Senate Judiciary Committee. I am grateful for the opportunity to appear
today before this body. As my formal testimony draws upon several
articles that I have written on the subject, I respectfully request
that these articles be made part of the record.\1\
---------------------------------------------------------------------------
\1\ These articles, in chronological order, are as follows:
Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing The
Constitution's Succession Gap, 48 Ark. L. Rev. 215 (1995) (based on
---------------------------------------------------------------------------
Senate testimony of 2/2/94)
http://islandia.law.yale.edu/amar/lawreview/1995Presidents.pdf
Akhil Reed Amar and Vikram David Amar, Is the Presidential Succession
Law Constitutional?, 48 Stan. L. Rev. 113 (1995)
http://islandia.law.yale.edu/amar/lawreview/1995Succession.pdf
Akhil Reed Amar, Dead President-Elect, Slate, Oct. 20, 2000
http://slate.msn.com/?id=91839
Akhil Reed Amar, This is One Terrorist Threat We Can Thwart Now,
Washington Post Outlook, Nov. 11, 2001
http://islandia.law.yale.edu/amar/oped/2001Terrorist.pdf
Akhil Reed Amar and Vikram David Amar, Constitutional Vices : Some Gaps
in the System of Presidential Succession and Transfer of Executive
Power, Findlaw, July 26, 2002
http://writ.news.findlaw.com/amar/20020726.html
Akhil Reed Amar and Vikram David Amar, Constitutional Accidents Waiting
to Happen-Again, Findlaw, Sept. 6, 2002
http://writ.news.findlaw.com/amar/20020906.html
My written testimony today largely recapitulates my formal testimony
of September 16, 2003 before the Senate Committee on Rules and
Administration and the Senate Judiciary Committee.
The current presidential succession act, 3 USC section 19, is in my
view a disastrous statute, an accident waiting to happen. It should be
repealed and replaced. I will summarize its main problems and then
outline my proposed alternatives.
First, Section 19 violates the Constitution's succession clause,
Article II, section 1, para. 6, which authorizes Congress to name an
``Officer'' to act as President in the event that both President and
Vice President are unavailable. House and Senate leaders are not
``Officers'' within the meaning of the succession clause.\2\ Rather,
the Framers clearly contemplated that a cabinet officer would be named
as Acting President. This is not merely my personal reading of Article
II. It is also James Madison's view, which he expressed forcefully
while a Congressman in 1792.\3\
---------------------------------------------------------------------------
\2\ For more discussion and analysis, see Amar and Amar,
Presidential Succession Law, 48 Stan. L. Rev. at 114-27.
\3\ According to Madison, Congress ``certainly err[ed]'' when it
placed the Senate President pro tempore and Speaker at the top of the
line of succession. In Madison's words,
It may be questioned whether these are officers, in the
constitutional sense. . . . Either they will retain their
legislative stations, and their incompatible functions will
be blended; or the incompatibility will supersede those
stations, [and] then those being the substratum of the
adventitious functions, these must fail also. The
Constitution says, Cong[ress] may declare what officers
[etc.,] which seems to make it not an appointment or a
translation; but an annexation of one office or trust to
another office. The House of Rep[resentatives] proposed to
substitute the Secretary of State, but the Senate
disagreed, [and] there being much delicacy in the matter it
---------------------------------------------------------------------------
was not pressed by the former.
Letter from James Madison to Edmund Pendleton (Feb. 21, 1792), in 14
Papers of James Madison 235 (R. Rutland et. al. eds. 1983). Several
members of the First and Second Congresses voiced similar views, see
John D. Feerick, From Failing Hands: The Story of Presidential
Succession 57-59 (1965); Ruth C. Silva, The Presidential Succession Act
of 1947, 47 Mich. L. Rev. 451, 457-58 (1949).
Second, the Act's bumping provision, Section 19 (d)(2), constitutes
an independent violation of the succession clause, which says that the
``officer'' named by Congress shall ``act as President . . . until the
[presidential or vice presidential] Disability be removed, or a
President shall be elected.'' Section 19 (d) (2) instead says, in
effect, that the successor officer shall act as President until some
other suitor wants the job. Bumping weakens the Presidency itself, and
increases instability and uncertainty at the very moment when the
nation is most in need of tranquility.
Even if I were wrong about these constitutional claims, they are
nevertheless substantial ones. The first point, to repeat, comes
directly from James Madison, father of the Constitution, who helped
draft the succession clause. Over the last decade, many citizens and
scholars from across the ideological spectrum have told me that they
agree with Madison, and with me, about the constitutional questions
involved. If, God forbid, America were ever to lose both her President
and Vice President, even temporarily, the succession law in place
should provide unquestioned legitimacy to the ``officer'' who must then
act as President. With so large a constitutional cloud hanging over it,
Section 19 fails to provide this desired level of legitimacy.
In addition to these constitutional objections, there are many
policy problems with Section 19. First, Section 19's requirement that
an Acting President resign his previous post makes this law an awkward
instrument in situations of temporary disability. Its rules run counter
to the approach of the 25th Amendment, which facilitates smooth
handoffs of power back and forth in situations of short-term
disability-scheduled surgery, for example. Second, Section 19 creates a
variety of perverse incentives and conflicts of interest, warping the
Congress's proper role in impeachments and in confirmations of Vice
Presidential nominees under the 25th Amendment. Third, Section 19 can
upend the results of a Presidential election. If Americans elect party
A to the White House, why should we end up with party B? Here, too,
Section 19 is in serious tension with the better approach embodied in
the 25th Amendment, which enables a President to pick his successor and
thereby promotes executive party continuity. Fourth, Section 19
provides no mechanism for addressing arguable Vice Presidential
disabilities, or for determining Presidential disability in the event
the Vice President is dead or disabled. These are especially troubling
omissions because of the indispensable role that the Vice President
needs to play under the 25th Amendment. Fifth, Section 19 fails to deal
with certain windows of special vulnerability immediately before and
after presidential elections.\4\
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\4\ For more analysis of the first three problems, see Amar and
Amar, Presidential Succession Law, 48 Stan. L. Rev. at 118-29. For more
discussion of the fourth problem, see Amar and Amar , Constitutional
Accidents. For more discussion of the fifth problem see Amar,
Presidents; Amar, Amar Dead President-Elect; Amar, One Terrorist
Threat.
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In short, Section 19 violates Article II and is out of sync with
the basic spirit and structure of the 25th Amendment, which became part
of our Constitution two decades after Section 19 was enacted.
The main argument against cabinet succession is that presidential
powers should go to an elected leader, not an appointed underling. But
the 25th Amendment offers an attractive alternative model of handpicked
succession: from Nixon to Ford to Rockefeller, with a President naming
the person who will fill in for him and complete his term if he is
unable to do so himself. The 25th Amendment does not give a President
carte blanche; it provides for a special confirmation process to vet
the President's nominee, and confirmation in that special process
confers added legitimacy upon that nominee.
If the 25th Amendment reflects the best approach to sequential
double vacancy--where first one of the top two officers becomes
unavailable, and then the other--a closely analogous approach should be
used in the event of a simultaneous double vacancy. Essentially, there
are two plausible options. Under one option, Congress could create a
new cabinet post of Assistant Vice President, to be nominated by the
President and confirmed by the Senate in a high-visibility process.
This officer's sole responsibilities would be to receive regular
briefings preparing him or her to serve at a moment's notice, and to
lie low until needed: in the line of succession but out of the line of
fire. The democratic mandate of this Assistant Vice President might be
further enhanced if presidential candidates announced their prospective
nominees for this third-in-line job well before the November election.
In casting ballots for their preferred presidential candidate, American
voters would also be endorsing that candidate's announced succession
team of Vice President and Assistant Vice President. Cabinet officers
should follow the Assistant Vice President in the longer line of
succession. If this option were deemed undesirable, Congress could
avoid creating a new position of Assistant Vice President, and instead
simply designate the Secretary of State, or any other top Cabinet
position, first in the line of succession after the Vice President.
Either one of these solutions would cure the constitutional
problems I have identified: Cabinet officers and/or a newly-created
Assistant VP would clearly be ``officers'' and bumping would be
eliminated. My proposals would also solve the practical problems that
afflict the current statute. Under these proposals, no resignations
would be required-power could flow smoothly back and forth in
situations of temporary disability. Congressional conflicts of interest
would be avoided. Party and policy continuity within the executive
branch would be preserved. And the process by which the American
electorate and then the Senate endorsed any individual Assistant VP or
Cabinet head would confer the desired democratic legitimacy on this
officer, bolstering his or her mandate to lead in a crisis.
The two additional issues I have raised today--Vice Presidential
disability and windows of special vulnerability at election time--also
have clean solutions, as explained in my 1994 testimony.\5\ Thank you.
---------------------------------------------------------------------------
\5\ See generally Amar, Presidents. For additional elaboration, see
Amar and Amar, Presidential Succession, 48 Stan. L. Rev. at 139; Amar,
Dead President-Elect; Amar, One Terrorist Threat; Amar and Amar,
Constitutional Accidents.
Mr. Chabot. Thank you, Professor.
Mr. Baker, you're recognized for 5 minutes.
TESTIMONY OF M. MILLER BAKER, PARTNER,
McDERMOTT WILL & EMERY
Mr. Baker. Mr. Chairman, thank you for the invitation to be
here today. This is a subject of profound national importance
and I'm happy to offer my thoughts any way I can to assist you.
Mr. Chabot. Could you pull that mike just a little closer?
The whole thing will move.
Mr. Baker. Yes, sir.
I would refer the Subcommittee to my prior testimony before
this Subcommittee and before the Senate for a detailed
treatment of the myriad constitutional and operational problems
associated with the Presidential Succession Act of 1947.
Suffice it to say here that the 1947 act is almost
unquestionably the single most dangerous statute in the United
States Code. That's because the 1947 act threatens to deprive
the United States of clear Executive authority at the precise
moment when the need for what Alexander Hamilton called
``energy in the Executive'' may be most urgent, and when the
absence of such clear Executive authority may be fatal to
American lives and fatal to American vital interests.
I'll briefly summarize my recommendations on the major
statutory changes that I think Congress should enact as soon as
possible.
First, the House Speaker and the President Pro Tem should
be completely removed from the line of succession for a host of
constitutional and policy reasons set forth in my prior
testimony and in the outstanding scholarship of Professor Akil
Amar and Professor Ruth Silva before him. This is not a radical
or unprecedented proposal. It merely returns the Nation to the
state that existed between 1886 and 1947. In 1886 Congress
confronted many of the same issues that we're discussing here
today, and it wisely concluded that congressional officers
should not be placed in the line of succession. Unfortunately,
Congress reverted back to the pre-1886 in 1947, but I submit
that Congress got it right in 1886.
Second, the statutory line of succession should be
reconstituted to include the most important Cabinet officers:
the Secretary of State, Secretary of Defense, the Attorney
General, and the Homeland Security Secretary, in that order,
plus those other persons in and outside of the Cabinet,
nominated by the President and confirmed by the Senate,
specifically for the purpose of serving in the line of
succession.
Now, whether a particular Cabinet Secretary, take the
Secretary of HHS, should be placed in the line of succession
should be left to the President's discretion. Frankly, some
Cabinet officers are stronger than others. We all know that.
And ultimately it's a question within the President's judgment
and discretion as to which members of his Cabinet outside of
the principal offices should be placed in the line of
succession. What should be beyond reasonable dispute is that
the mere holding of Cabinet office alone does not qualify the
office holder for assuming the acting presidency.
Now, by allowing the President the discretion to nominate
persons outside of the Cabinet, and indeed outside of
Government, to serve in the line of succession, this problem
would solve the problem of the concentration of successors in
the Washington area. Those persons outside of Government and
nominated by the President and confirmed by the Senate to serve
in the line of succession could receive nominal compensation,
regular updates of intelligence, and appropriate security.
Former Presidents, former Vice Presidents, former Cabinet
officers and retired Members of Congress come to mind as
persons who might be nominated to serve in the line of
succession, take Senator Sam Nunn, for example. The Senate's
advice and consent function would serve to check any abuse by
the President in making such nominations.
Third, Congress should eliminate the requirement that
statutory successors serving in the Cabinet resign their
Cabinet post before assuming the acting presidency. This
requirement is counterintuitive and might cause a Cabinet
officer to hesitate before acting or even to decline to act,
especially if the acting presidency might be limited to a few
hours or a few days. Recall March 30, 1981, when President
Reagan was on the operating table, Vice President Bush was in
Texas, in transit back to Washington. We had a few hours where
there was no clear Executive authority within the United
States. We had a Cabinet that was assembled in the White House
Situation Room, and a disagreement within the Cabinet as to who
possessed Executive authority, and we also had a disagreement
between the Secretary of State and the Secretary of Defense
over whether the strategic alert status of American forces
should be heightened. That's exactly the situation where you
need certainty in who is actually running the Government.
Fourth, Congress should modify but not entirely eliminate
the bumping or displacement provisions of the 1947 act. To put
the matter in simplistic terms, there is bad bumping and there
is good bumping. It's very simplistic, but Congress should
eliminate the former but provide for the latter. Congress
should eliminate the ability of any newly-selected prior-
entitled office holder, such as a new House Speaker or a
President Pro Tem, if they're going to stay in, from displacing
a lower ranked successor who is serving as acting President.
This would preclude the scenario outlined in my prior testimony
made possible under existing law and the rules of the House of
a handful of surviving Members of the House convening,
selecting a new Speaker, who would then in turn would displace
a Secretary of State or other Cabinet officer serving as acting
President. It's essentially a coup d'etat built into the law.
That should be eliminated forthright.
Congress should also provide that if a more senior and
otherwise capable statutory successor voluntarily chooses not
to assume the acting presidency, that person permanently waives
their right to claim the office in the future. You shouldn't be
able to sit back and say, well, I'll wait and see how
circumstances develop before taking the office.
However, in one respect, and this is a crucial point and
essentially the only area where I disagree with my
distinguished colleague, Professor Amar. In one respect bumping
is both salutary and constitutional, and that is a situation
where a more senior successor is temporarily unavailable to
serve as acting President, but thereafter recovers the ability
to do so. In my view, the overriding goal of the Succession
Clause is to provide the smooth and seamless transfer of power
to the most senior successor authorized and available to assert
that power. The problem is if you don't allow bumping in that
situation between Cabinet officers, you may have a situation
where in a fluke situation, where the first available Cabinet
officer is the Secretary of Agriculture or the Secretary of
Veterans Affairs, and thereafter, the Secretary of State or the
Secretary of Defense, who would be a much more plausible
President, just happened to be out of the country and was
unavailable, but because the more junior guy got there first,
he would be precluded from the senior person from assuming the
office.
That is the state of the law today. We have a situation in
which if the Secretary of Agriculture gets there first because
he happens to be the only person available, he's there. That
should be changed immediately so that a more senior Cabinet
officer could replace him when he becomes available.
I see my time is up, and my prepared testimony is in the
record. Thank you, Mr. Chairman.
[The prepared statement of Mr. Baker follows:]
Prepared Statement of M. Miller Baker
Mr. Chairman, Ranking Member, and Members of the Subcommittee:
Thank you for the invitation to offer my views at this oversight
hearing on the Presidential Succession Act of 1947, which is found at 3
U.S.C. Sec. 19. This is a subject of profound national importance, and
I am pleased to do whatever I can to assist the Congress in correcting
the many deficiencies of the 1947 Act.
In December 2001, I wrote a white paper for the Federalist Society
entitled ``Fools, Drunkards, and Presidential Succession'' in which I
provided detailed criticism of the 1947 Act. On February 28, 2002, I
gave detailed testimony to this subcommittee that substantially drew on
my Federalist Society article. I also testified on this subject before
a joint hearing of the Senate Judiciary and Rules Committees on
September 16, 2003. Thus, I would refer the subcommittee to my prior
testimony before this subcommittee and the Senate for a detailed
treatment of the myriad constitutional and operational problems
associated with the Presidential Succession Act of 1947.
Suffice it to say here that the 1947 Act is almost certainly the
most dangerous statute to be found in the United States Code. The 1947
Act is extremely dangerous because it threatens to deprive the United
States of clear Executive authority at the precise moment when the need
for what Alexander Hamilton called ``energy in the Executive'' may be
most urgent, and when the absence of such clear Executive authority may
be fatal to American lives-possibly very many American lives-and vital
American interests.
I will briefly summarize my recommendations on major statutory
changes that Congress should enact as soon as possible.
First, the House Speaker and President pro tempore should be
completely removed from the line of succession for a host of
constitutional and policy reasons set forth my in prior testimony to
this subcommittee and in the outstanding scholarship of Professor Akil
Amar and Professor Ruth Silva before him. This is not a radical or
unprecedented proposal. It merely returns the nation to the situation
that existed from 1886 until 1947. In 1886 Congress confronted many of
the same issues that we will discuss today, and it wisely concluded
that congressional officers should not be placed in the line of
succession for both constitutional and policy reasons. Unfortunately
Congress reverted back to the pre-1886 regime in 1947, but I
respectfully submit that Congress got it right in 1886.
Second, the statutory line of succession should be reconstituted to
include the Secretary of State, the Secretary of Defense, the Attorney
General, and the Homeland Security Secretary (in that order) plus those
other persons (in and outside of the cabinet) nominated by the
President and confirmed by the Senate specifically for the purpose of
serving in the line of succession. (Nomination by the President and
confirmation by the Senate for the purpose of serving in the line of
succession should make such a person an ``Officer of the United
States.'') Whether the Secretary of the Treasury or the Secretary of
Health and Human Services should be placed in the line of succession
should be left to the President's discretion, subject to the advice and
consent of the Senate. What should be beyond reasonable dispute is that
the mere holding of cabinet office does not by itself qualify the
officeholder for assuming the Acting Presidency. Does anyone seriously
believe that the Secretary of Agriculture should be catapulted into the
Presidency, especially in extreme circumstances that might resemble 9/
11 and the assassination of President Kennedy rolled into one?
By allowing the President to nominate persons outside of the
cabinet and indeed out of government to serve in the line of
succession, this amendment would also allow for the dispersal of
presidential successors outside of the Washington, D.C., metropolitan
area, an area that must be a primary target for any weapon of mass
destruction targeted by America's enemies. Those persons outside of
government nominated by the President and confirmed by the Senate to
serve in the line of succession could receive nominal compensation,
regular intelligence updates, and appropriate security. This would
avoid the political problem of the well-paid, do-nothing sinecure.
Former Presidents, former Vice Presidents, former cabinet officers, and
retired members of Congress come to mind as persons who might be
nominated to serve in the line of succession. The Senate's advice and
consent function would serve to check any abuse by the President in
making such nominations.
Third, Congress should eliminate the requirement that statutory
successors serving in the cabinet resign their cabinet posts before
assuming the Acting Presidency. This requirement is counterintuitive
and might cause a cabinet officer to hesitate before acting, or even to
decline to act, especially if the ``Acting Presidency'' might be
limited to a few hours or days. A rational succession mechanism would
induce action by potential successors, but the 1947 Act has the
perverse effect of potentially inducing hesitation and inaction by
statutory successors.
Fourth, Congress should modify, but not entirely eliminate, the
``bumping'' or displacement provisions of the 1947 Act. To put the
matter in simplistic terms, there is ``bad bumping'' and then there is
``good bumping.'' Congress should eliminate the former, but expressly
provide for the latter.
Congress should eliminate the ability of any newly selected prior-
entitled officeholder, such as a new House Speaker, President pro
tempore, or Secretary of State, to displace a lower-ranking statutory
successor from the Acting Presidency. This would preclude the scenario
outlined in my prior testimony, made possible under the 1947 Act and
the rules of the House, of a handful of surviving members of the House
of Representatives selecting a new speaker in the wake of an attack,
who in turn could oust the Secretary of State or other cabinet officer
serving as Acting President.\1\
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\1\ Likewise, a more senior cabinet successor (e.g., the Secretary
of State) who is appointed by a more junior cabinet successor (e.g.,
the Secretary of Defense) serving as Acting President should not
displace or ``bump'' the appointing successor. However, the law should
allow newly appointed officials to take their place in the line of
succession, so that statutory successors to the Acting President could
be replenished.
---------------------------------------------------------------------------
Congress should also provide that if a more senior and otherwise
capable statutory successor voluntarily chooses not to assume the
Acting Presidency, that person thereby permanently waives his right to
claim the office in the future. Under the 1947 Act, a Speaker or
President pro tempore (but not a cabinet officer) may choose not to
assume the Acting Presidency, but then later reassert those rights.
That right of ``re-assumption'' should be eliminated.
In one respect, however, ``bumping'' is both salutary and
constitutional. That is the situation where a more senior statutory
successor is temporarily unable to serve as Acting President, but
thereafter recovers the ability to do so.
In my view, the overriding goal of the Succession Clause is the
smooth and seamless transfer of Executive authority to the most senior
successor authorized and available to exercise such power. The
Succession Clause provides that to the extent the President is unable
to ``discharge the powers and duties of the said office, the same shall
devolve on the Vice President.'' The implication of this phrase is that
when the President recovers his ability to discharge the duties of his
office after a period of temporary disability, Executive authority
necessarily reverts back to the President.
Although this seamless transfer of authority between the President
and Vice President during the former's ``period of inability'' has been
somewhat (and probably unduly) complicated by the cumbersome transfer
procedures established by the 25th Amendment, the same general
principle governs, I believe, the transfer of authority between
``Officers'' designated by Congress to serve as Acting President in the
event of a double vacancy. Thus, if the most senior successor in
Congress's designated statutory line of succession is temporarily
unable to serve (e.g., Secretary of State Colin Powell was arguably
unable immediately to serve as Acting President on the morning of
September 11, 2001, because he was in South America), Executive
authority should revert to that successor when he or she is able to
act.
I understand that Professor Amar argues that under the Succession
Clause, a statutory successor serving at Acting President may be not be
``bumped'' by a more senior statutory successor who was previously
unable to act. As I understand it, Professor Amar's argument is based
on the text, which provides that the statutory Officer designated by
Congress ``shall act accordingly, until the Disability be removed, or a
new President shall be elected.'' (emphasis added). According to
Professor Amar, a statutory Acting President cannot be removed until
the disability of the President or Vice President is removed, or a new
President is elected.\2\
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\2\ It should be noted that the Presidential Succession Act of 1947
reflects Professor Amar's views on this issue, insofar as it governs
the succession rights of cabinet officers inter se. Under the 1947 Act,
if by happenstance the Secretary of Veterans Affairs happens to the
first available cabinet available to assume Executive authority, no
member of the cabinet may thereafter displace him or her, even if the
senior members of the cabinet recover the ability to act. The 1947 Act,
however, does allow the Speaker or the President pro tempore, including
a newly chosen Speaker or President pro tempore, to displace cabinet
officers for any reason. See 3 U.S.C. Sec. 19.
---------------------------------------------------------------------------
Although Professor Amar's inference from the text is a fair one, I
do not think that it is the only fair inference that one may draw from
the text. The Succession Clause, in its entirety, provides:
2In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and
Duties of the said Office, the Same shall devolve on the Vice
President, and the Congress may by Law provide for the Case of
Removal, Death, Resignation or Inability, both of the President
and Vice President, declaring what Officer shall then act as
President, and such Officer shall act accordingly, until the
Disability be removed, or a President shall be elected.
U.S. Constitution Art. II, Sec. 1, Cl. 6 (emphasis supplied). The
Clause authorizes Congress to provide ``by law'' for the ``case'' of a
double vacancy or inability, declaring what Officer shall as act as
President, and such Officer shall act ``accordingly.'' The Officer
designated by Congress is to assume Executive Authority ``according''
to the ``law'' enacted by Congress to ``provide for the case'' of a
double vacancy or inability. Thus, if Congress provides for multiple
successor Officers in a descending order of priority, Congress may
stipulate that a temporarily unavailable higher-ranked Officer may
assume Executive authority from a lower-ranked Officer upon recovering
the capacity to act. The exercise of Executive authority according to
the law enacted by Congress terminates when ``the Disability [of the
President or Vice President] be removed, or a President shall be
elected.''
This understanding of Congress's power to provide for the exercise
of Executive authority by a hierarchy of successors is consistent with
the Clause's treatment of the exercise of Executive authority by the
Vice President: when the President is unable to exercise his duties,
the Vice President may do so, until the President recovers his
capacity. It would be odd for the Clause to prohibit Congress from
employing the same practical, flexible approach to the temporary
``inability'' of a more senior Officer in a statutory hierarchy of
successors.
Moreover, to the extent that the Clause allows for two alternative
inferences, in choosing between inferences the tie-breaker should be
considerations of practical governance and the possibility of absurd
results. Because ``law is an instrument of governance rather than a
hymn to intellectual beauty, some consideration must be given to
practicalities.'' Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
837 (1989). If Professor Amar is correct, when a successor at or near
the very bottom of the statutory hierarchy of successors (e.g., the
Secretary of Veterans Affairs or the Secretary of Education) happens to
be the first available statutory successor able to assume Executive
authority, then a more senior and patently more fit successor who was
under a temporary disability, such as the Secretary of State, would not
thereafter be able to assume the duties of Acting President. Professor
Amar's construction thus has the effect of penalizing Congress for
prudently providing for an extended line of succession by creating a
possible trap in which Congress's last choice of potential successors
could become Acting President under fluke circumstances, and thereafter
not subject to replacement by more senior successors who were
temporarily unavailable.
In addition to allowing for the possibility of such unfortunate
results, Professor Amar's construction-which as noted above is already
reflected in the 1947 Act insofar as it applies to the rights of
cabinet officers inter se-has other destabilizing effects. It could
induce hesitation on the part of available, but lower-ranked, statutory
successors fearful of the charge of usurpation.\3\ Such lower-ranked
successors may be hesitant to act until the unavailability or status of
other, higher-ranked successors can be definitively confirmed, which
hesitation might prove disastrous to the national interest. The
succession mechanism should induce action, not hesitation, by the first
available statutory successor. Thus, the first available statutory
successor should be able to act decisively, on the basis of incomplete
information as to the definitive status of more senior successors, with
the knowledge that if a more senior successor is later to be able to
act, Executive authority will automatically revert back to that more
senior successor.
---------------------------------------------------------------------------
\3\ In some future crisis, when a statutory successor may be called
upon to act in circumstances where it is unclear whether there are any
surviving senior successors, the successor may recall the ridicule that
Secretary of State Alexander Haig suffered for his famous ``I'm in
charge here'' statement to the world on March 30, 1981. What is often
overlooked about that episode is what prompted Haig's remark. The White
House press spokesman had just stated on live television, broadcast
worldwide, that he did not know who was running the government.
Although Secretary Haig's demeanor in this famous episode was less than
reassuring, his essential judgment was sound: it was necessary to
assure the world (and foreign enemies in particular) that the
continuity of Executive authority was not affected by the attempt on
President Reagan's life and the possible inability of the Vice
President to discharge presidential duties.
---------------------------------------------------------------------------
Finally, Congress should not provide for a new presidential
election in the event of a double vacancy, even if the double vacancy
occurs relatively early in the presidential term. The principal
objective of the succession mechanism should be stability. Once a new
President and Vice President take office, the nation and the world
should know and understand that in the event of a double vacancy, there
will be continuity of policy because the President's designated
successor confirmed by the Senate will serve as Acting President until
the expiration of the President's term. If federal law specifically
provided for a special election in the event of a double vacancy,
foreign enemies (governments as well as terrorists) and domestic madmen
might be tempted to plot a double assassination for the specific
purpose of forcing a new election, and thereby possibly effecting a
change in policy. Recent events in Spain demonstrate that terrorists
can very well attempt to manipulate the outcome of elections; the same
mindset could certainly contemplate a terrorist attack with the goal of
forcing a special election. The succession mechanism should not provide
any incentive to those who might to seek to effect a change in policy
by assassination, and unfortunately, a provision for a special election
would do exactly that.
Mr. Chabot. Thank you very much.
I'd ask unanimous consent to recognize out of order the
distinguished Ranking Member of the full Judiciary Committee,
Mr. Conyers, for a minute or two.
Mr. Conyers. Thank you, Chairman Steve Chabot.
I'm intrigued by the depth of this discussion, the analysis
that has gone on. The one Member that's on this Committee, Brad
Sherman of California, has been working on this longer than any
other Member I know in the House, and I wanted him to know that
that observation is in my opening statement, which Chairman
Chabot has already included in the record. And we are very
aware of your second piece of legislation on this subject,
which goes outside and around the usual Cabinet officers. And
so I am intrigued that of the two witnesses that I heard, I
think I hear elements of what you have been proposing, and I
want to commend everyone on this panel, but Brad Sherman, we
continue to look to you for the direction that we should go.
I had no idea that this was as serious a challenge to us.
This is not academic. This is in real time, and I commend the
Committee for taking this up as far ahead of time as they
could, and I thank you so much.
Mr. Chabot. Thank you.
We're going to now recognize out of order for the purpose
of making an opening statement for the minority side, the
gentleman from New York, the Ranking Member of this Committee,
Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I won't use the full 5
minutes.
First let me welcome our colleague, the gentleman from
California, Mr. Sherman, and our other distinguished witnesses
who are here to present their insights on this very important
and timely issue, and I particularly want to thank the
gentleman from California for his leadership in insisting that
we should face this issue which a lot of people would rather
sort of pretend we don't have to face.
I also want to thank you, Mr. Chairman, for holding this
hearing.
As we consider the recommendations of the 9/11 Commission
this week--I should say since it was taken off the agenda
today--if we consider the--whether or not we consider the
recommendations of the 9/11 Commission this week, in any event,
it makes good sense to look at the frightening prospect that a
catastrophic attack on our Government could create a leadership
vacuum. I agree with our colleague that in addition to
functional continuity, our planning must ensure that our
Government continues to have and be seen to have the legitimacy
needed to govern. In a time of crisis, this legitimacy would be
all the more necessary.
Many people describe a catastrophic attack on our
Government as unthinkable. It is unfortunately all too
thinkable, as we should have learned 3 years ago. It is indeed
a daunting prospect. However, we have an obligation to think
about it, to think about it carefully, and to act with thought
and careful deliberation before we are presented, God forbid,
with an imminent emergency.
I look forward to the testimony. I welcome our witnesses,
and I thank you, Mr. Chairman.
Mr. Chabot. Thank you very much.
We'll go back to the panel. We now recognize the gentleman
from California, Mr. Sherman.
TESTIMONY OF THE HONORABLE BRAD SHERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Sherman. Mr. Chairman, Mr. Nadler, thank you for
holding these hearings here today. Thank you for letting me
speak last so that more Members can be present.
I have been working on this since December of 2000, and I'm
glad to see that it is being addressed in a serious and a
bipartisan manner. This is one issue that we can resolve
without amending the Constitution. We should have two
objectives. First, continuity. When the voters select a
philosophy to govern the Executive Branch of Government, that
philosophy should govern that branch for the 4-year period.
Second, legitimacy. We should always have one President who has
undisputed rights to that office.
Addressing continuity, current law could lead terrorists to
believe that they could kill the President and the Vice
President and radically alter U.S. policy by installing in the
White House an individual who may share nothing with the
elected President in the way of philosophy, was not selected by
the elected President and may well be of the other party.
In 1865, John Wilkes Booth organized a conspiracy, not just
to kill Lincoln, but attempted to kill Vice President Andrew
Johnson, and wounded the Secretary of State. Are we to assume
that Osama bin Laden will not be just as ambitious?
Perhaps worse than a shift in policy is the mere fear of
that shift. Would a President take a leave of absence for an
operation if doing so would vest the presidency temporarily in
the other party? Had Gerald Ford not been promptly confirmed as
Vice President, who's to say whether Richard Nixon would have
resigned when he did, because doing so would have turned the
presidency over to Democratic Speaker Carl Albert. If instead
Nixon had clung to power, he might have been impeached, but
would the Senate have tried him in a nonpartisan manner knowing
that Speaker Albert was next in line?
Second, legitimacy. We need a single undisputed President.
As has been pointed out, we have the simplest possible--or one
of the more simple circumstances could lead to a constitutional
crisis. We lose a President and a Vice President, the Speaker
is sworn in, and immediately perhaps a majority of
constitutional scholars are there to say that that Speaker is
not a legitimate President of the United States at a time when
we have perhaps just lost a President and a Vice President due
to assassination.
There are even more complicated scenarios, and I'll deal
with one. Excuse me for being morbid, but that's what seems to
be required by this subject. Imagine the President, Vice
President, Speaker of the House and the President Pro Tem of
the Senate are all killed. Under current law the Secretary of
State becomes President. But if the Senate acts quickly to name
a new President pro tempore, then that Senator bumps the
Secretary of State. But then if the House meets and elects a
new Speaker, that Speaker bumps the former Senator and becomes
President. And then let's say that House Member who had been
Speaker for a day and now is inaugurated as President, that
Speaker is supposed to nominate a new Vice President under the
25th amendment, but would probably refuse to do so since the
new Vice President would bump the person who had appointed the
new Vice President.
Not only do we have that level of confusion with a rotating
series of acting Presidents, but any one of the bumpees could
cling to the White House, and if I understand Professor Amar's
testimony, he'd be there on behalf of the bumpee. So we would
have not only a series of Presidents, but a series of conflicts
and a division among our constitutional scholars. When it comes
to Presidents, one is good, more is not better.
Last year I introduced H.R. 2749, which is one approach to
this. I'm now working on other legislation. Nothing would
thrill me more--and I plan to introduce this legislation when
we reconvene in November--nothing would thrill me more than if
Members of this panel would join me in introducing that new
legislation, or even work with me in crafting legislation that
they would introduce. Let me identify what the principles of
this new legislation would be.
First, the line of succession should run through the
Cabinet officers, not through the congressional leadership. As
has been pointed out, this was the law of this country from
1886 to 1947. And of course, we would provide that there is no
bumping by a later appointed officer. So that if a Secretary of
State becomes President, that person is not bumped by someone
who is later appointed Vice President through the 25th
amendment. I would point out that this same philosophy is
included in a bill introduced by Senator Cornyn in the other
body.
This philosophy ensures--this approach ensures that we have
the same philosophy governing the Administration for a 4-year
period. It eliminates the risk that a Speaker of the House
would resign a House seat just to serve as President for a few
hours, and it allows a President to take a leave of absence
with peace of mind, knowing the other party would not take
over. Finally, it eliminates a conflict of interest as a
Speaker of the House guides our House through either an
impeachment process or through the confirmation of a
replacement Vice President under the 25th amendment.
Second, the legislation would provide that at the end of
the list of Cabinet officers, we put five top ambassadors. They
are the most senior Administration officials who reside outside
the Washington area and should be included in the list in case
all of us here in Washington are killed.
Now, we face a unique period of vulnerability during what I
call the transition period, and that is the period from when
the parties hold their convention until inauguration day and
even until the new President has a few Cabinet officers who are
confirmed. And let's deal with the different phases of that
transition period.
The first phase is between the party nomination and when
the Electoral College meets. Let's say the presidential nominee
of one of the parties is killed. Now, party rules have called
for a meeting of executive committees. It could be this
person's killed the day before the election. The public needs
to know that the vice presidential nominee will be the person
that the electors of that party will vote for when the
Electoral College meets. We need to establish that, both by law
and by calling upon the parties to do it through party rule.
Only in that way could we prevent the electors from splitting
because some of them would say, well, we're not going to vote
for the vice presidential nominee for President. We barely
thought he was qualified to be Vice President. We need instead
to urge the parties to provide that their electors will vote
for the vice presidential nominee if the presidential nominee
is killed, and provide a list of the third, fourth, fifth in
line in case both their nominees are killed.
Now, most scholars believe that the Electoral College----
Mr. Chabot. Could the gentleman summarize? And I'll tell
you what, I know I said I'd give you a little leeway, but we're
at 8 minutes now. And what I'm going to do is I'm going to give
you some additional time in my questioning time, so if you
could summarize in a sentence or two.
Mr. Sherman. In a sentence or two, in a nuclear age, in an
age of terrorism, we must have a single undisputed President
and we cannot invite terrorists to change our national policy
through a bullet.
[The prepared statement of Mr. Sherman follows:]
Prepared Statement of the Honorable Brad Sherman, a U.S. Senator from
the State of California
Mr. Chairman, Good Morning. I would like thank you and Ranking
Member Nadler for conducting these hearings today. As I'm sure they and
their staffs can attest, I have spent a great deal of time pushing for
Congress to address the issue of Presidential succession, beginning
with a Special Order in December, 2000. I am happy to see it is being
taken seriously today and more importantly that it is being addressed
in a bipartisan manner. There is no Democratic or Republican platform
plank on Presidential succession. It is not an issue we discuss with
swing voters in Ohio. It is an issue that requires careful study and
good policy. Although we may have different opinions and solutions,
those differences are not partisan.
I would also like to thank all the experts who have come here
today. These are some of the premier minds in the country on
constitutional and succession issues, and it is important we hear their
insights on how to best solve the problems of Presidential succession.
One thing to emphasize is this is a problem we can address without
amending the Constitution. Article II, Section 1 provides: ``Congress
may by Law provide for the Case of Removal, Death, Resignation or
Inability, both of the President and Vice President . . .'' However,
Congress has not substantially legislated on this matter since the
Presidential Succession Act of 1947.
Currently, if the President dies, the Vice President becomes
President. If the Vice President's office is vacant, than the Speaker
of the House ascends to the Presidency. After that is the Speaker Pro
Tempore, and following that are the members of the Cabinet in the order
of department creation, excluding the Secretary of Homeland Security
who has not yet been added to the list. This same order applies when
the Presidency is temporarily vacant under the 25th Amendment.
What is most important here is continuity and legitimacy:
continuity of the policy program selected quadrennially by the voters,
and the unambiguous right of a single person to serve as our legitimate
president. Unfortunately, our current law falls far short of achieving
these objectives.
CONTINUITY OF POLICY
The will of the people would be subverted if a Congressional leader
of a different party ascended to the Presidency, and completely
reversed the course of government set by the elected administration.
Current law could mislead terrorists into believing that by killing the
President and Vice President, they could alter US policy.
In 1865, John Wilkes Booth organized a conspiracy which not only
killed Lincoln, but attempted to kill Vice President Andrew Johnson and
wounded Secretary of State William Seward. Can we be certain that Osama
Bin Laden would be less ambitious?
Perhaps worse than a shift in policy is the fear of such a shift.
If the office of the Vice President is vacant and the President is
disabled, the Cabinet may fear exercising the 25th Amendment because
the Speaker of the House could alter policy in a way that the President
disagrees with. Would a President take a leave, say for an operation,
vesting the Presidency temporarily in the other party?
Had Gerald Ford not been promptly confirmed as Vice President, who
is to say that President Nixon would have resigned his office when he
did, turning the Presidency over to Speaker Albert, a Democrat. If
President Nixon had been impeached, would the Senate have tried him in
a non-partisan manner, knowing Speaker Albert was next in line?
Speaker Albert could have used his power to slow down the
confirmation of Mr. Ford, believing that eventually Mr. Nixon would be
removed from office, giving him the Presidency. We were fortunate to
have a man of integrity serving as Speaker--we should always be so
lucky, but we cannot count on that fortune.
CLEAR LEGITIMACY OF A SINGLE PERSON TO SERVE AS PRESIDENT
Nothing is more important than making sure that whoever succeeds to
the Presidency is seen as the legitimate leader of this country. Under
current law, there are scenarios where one catastrophe could result in
as many as four claimants to the Presidency.
Unfortunately, a discussion of Presidential Succession requires us
to assume morbid events. So, please bear with me. Imagine that the
President and Vice-President are at the Capitol for an official event.
A disaster occurs resulting in the death of the President, Vice
President, Speaker of the House and President Pro Tem of the Senate.
Under current law, the Secretary of State would become the
President. However, if the Senate acted quickly to name a new President
Pro Tempore, she would ``bump'' the Secretary of State to become
President. Once the House elects a new Speaker, the new Speaker would
``bump'' the Senate President Pro Tempore, who would then become a
private citizen, having given up her Senate seat to serve as President
for just a few days.
The new President--the former Speaker of the House--might not
nominate a Vice-President under the 25th Amendment. Because, once
confirmed, the new Vice President, now a ``prior-entitled individual''
would ``bump'' the former Speaker and become the President. Needless to
say four Presidents resulting from one catastrophe would lead to a
great deal of confusion. That confusion would only be amplified should
one of these figures not abide by the law or challenge the succession
laws in court. All of the outcomes outlined above represent the leading
interpretation of the current statutory scheme. However, each of the
temporary Presidents could make a credible claim to retaining the
Presidency.
When it comes to Presidents--one is good; more than one is not
better. Especially not at a time of national discord or international
challenge.
OTHER AREAS
There are a few other problems that I will briefly highlight here
that should be considered.
The current line of succession does not include anyone who resides
primarily outside of Washington, DC. Should the worst happen in our
capital city, there would be no civilian leader to become commander in
chief.
If a party nominee dies the day before the general election--will
the people know who they are voting for? What if the winner of the
Electoral College dies before the counting of the votes in early
January--will the Vice President-elect become the President-elect? What
if the President-elect and Vice-President elect both die after the
Electoral College meets, but before the inauguration?
These are just a few short examples. In a post 9/11 world, our
presidential succession system should be as solid as the barriers
around the Capitol.
SHERMAN BILL
Last year, I introduced a Presidential Succession Act, H.R. 2749,
which was my first step in solving these problems. Since then, I have
been working with Members of both parties and both chambers, as well as
academic experts, to improve my legislation and I am now prepared to
introduce a new bill that I believe can rectify virtually all of the
current problems, without amending our constitution. My hopes is that
members of this subcommittee will either join me in introducing the new
bill and/or would work with me on a bill they might introduce.
First, the line of succession should run through the Cabinet
Officers, not through the Congressional leadership. This is included in
my draft and in a bill introduced by Senator Cornyn in the Senate. This
insures that the philosophy selected by the electorate governs for four
years: it also avoids the bizarre situation where a Speaker would have
to resign from the House to serve as temporary President for only a few
hours, perhaps while the President undergoes surgery. It allows a
President to take a leave of absence with peace of mind--knowing the
opposing party will not ``take over.'' Finally, it eliminates any
conflict of interest as a Speaker guides the House, either through an
impeachments, or through the confirmation of a replacement Vice
President under the 25th Amendment.
Second, my new legislation adds five ambassadors to the end of the
succession list. In my view, the best ambassadors for this are the
United Nations Ambassador (who in some Administrations has ``cabinet
rank''), followed by the ambassadors to the four other permanent
members of the United Nations Security Council. These five ambassadors
are probably the five top executive branch officials who do not reside
in the Washington, DC area.
DEALING WITH THE TRANSITION PERIOD
We face unique vulnerabilities between the day the political
parties select their respective nominees and the day we have sworn in a
new President, and Vice President, and at least several new Cabinet
secretaries. New legislation should deal with each phase of this
transition period.
First, there is the period between the conventions and the day the
Electoral College meets in early December. Voters should know, and
electors should pledge, that if the Presidential Nominee dies, the
party's electors will vote for its vice presidential nominee for
President. Likewise, each party should have a third and fourth person
on the list, publicly announced by the Presidential Nominee so that
voters will know, and electors will feel themselves bound. Anything
less would lead to voter confusion if there was one or two
assassinations just before Election Day, or might lead a party's
electors to split their votes if there were assassinations, just after
Election Day. A section of my proposed legislation urges the parties to
list their third and fourth and fifth in line; preferably such
announcement will be made at or before the convention by the
Presidential nominee.
Many scholars believe that the Electoral College cannot meet a
second time, thus leaving us vulnerable between the date it meets and
the date the new President is sworn in, and even until a good number of
the new President's Cabinet officers are confirmed. A resolution
introduced by Senators Cornyn and Feinstein in the other body, a
similar resolution I introduced in the House, and a section of the
proposed legislation would urge the President-elect to name, and the
Senate to act on, many Cabinet nominations soon after the election.
Under my legislation, these new Cabinet members, named by the
President-elect and confirmed by the Senate, would then stand in the
line of succession. They would succeed to the Presidency if the
President-elect, and Vice President-elect, died before, on or after
Inauguration Day.
Ideally, just after the Electoral College meets, the President-
elect would transmit to the outgoing President names of individuals
that he or she is planning on appointing to at least some Cabinet
posts. Those the outgoing President finds acceptable would be sent to
the Senate for confirmation. At least one of these figures could be
confirmed prior to the inauguration and kept in a secure location
during the ceremony as is done with the State of the Union.
There is of course the risk that the outgoing and incoming
President, or the Senate, are not obliging so that there are no Cabinet
officers to succeed to the Presidency. In this case only, we should
turn to Congressional Leadership. But, to ensure continuity of policy,
the Congressional leaders at the end of the presidential succession
list, would be designated by the President-elect prior to taking
office. After the casting of the Electoral votes, the President Elect
would file with the Clerk of the House and the Secretary of the Senate
which House leader, Speaker or Minority Leader, and which Senate
Leader, Majority or Minority Leader, they want to succeed them should
the worst happen. This notification would be effective at Noon on
inauguration day. The President-elect (or President after Inauguration)
could change the designation by filing replacement documents; this
might occur if a Minority Leader became Speaker due to a change in
majority.
CONCLUSION
I have been reaching out to scholars, some of whom are with us
today, to discuss my bill and make sure it is the strongest piece of
legislation possible. I would like to submit two letters of support I
have received into the record.
The foregoing scenarios can seem far-fetched and macabre. But the
nuclear age and the age of terrorism have thrust them upon us.
Again Mr. Chairman, thank you for holding this hearing.
Mr. Chabot. Thank you very much. And I'll thank all the
witnesses for their testimony.
I'd ask unanimous consent to include in the record some
materials that Senator Cornyn, who is the Chairman in the
Senate of the Subcommittee on the Constitution, we'll include
those items in the record.
[The prepared statement of Mr. Cornyn follows:]
Prepared Statement of the Honorable John Cornyn, a U.S. Senator from
the State of Texas
I want to congratulate Chairman Sensenbrenner, Chairman Chabot, and
Representative Sherman for today's important hearing on the
Presidential Succession Act. Thank you for the opportunity to submit
these written remarks.
On Tuesday, September 16, 2003, Senator Lott and I co-chaired a
joint hearing of the Senate Judiciary Committee and the Senate Rules
Committee to explore problems with the current Presidential succession
law. I have also chaired a number of other hearings to discuss the
continuity problems facing the institution of Congress. I convened
these hearings because I am deeply concerned that, years after the
terrorist attacks of September 11, 2001, Congress still has not taken
the steps necessary to ensure that the vital institutions of our
government will continue to operate on behalf of the American people
even in the wake of a catastrophic terrorist attack.
REFORM OF THE PRESIDENTIAL SUCCESSION ACT OF 1947
Constitutional scholars across the political spectrum--including
distinguished Yale Law Professor Akhil Amar, who appears before your
committee today--have condemned the current Presidential succession law
as one of the worst-drafted laws on the books today. They have
repeatedly expressed that current law is unconstitutional, unclear, and
incapable of ensuring continuity of the Presidency at all times.
Everyone should agree that terrorists should not have the ability
to choose our government. They should not be able to shut down our
government, or to give control of the government to a different
political party, by conducting a terrorist attack. Yet under current
law, we are faced with precisely that possibility.
This situation is dangerous and intolerable. We must have a system
in place, so that it is always clear--and beyond all doubt--who the
President is, especially in times of national crisis. Yet our current
succession law badly fails that standard. Imagine the following
scenarios:
The President and Vice President are both killed.
Under current law, next in line to act as President is the
Speaker of the House. Suppose, however, that the Speaker is a
member of the party opposite the now-deceased President, and
that the Secretary of State, acting out of party loyalty,
asserts a competing claim to the Presidency. The Secretary
argues that members of Congress are legislators and, thus, are
not ``officer[s]'' who are constitutionally eligible to act as
President. Believe it or not, the Secretary has a strong case--
in fact, he can cite for support the views of James Madison,
the father of our Constitution, who argued this very point in
1792, as well as legal scholars on the left and right. Who is
the President? Whose orders should be followed by our armed
forces, by our intelligence agencies, and by our domestic law
enforcement bureaus? If lawsuits are filed, will courts take
the case? How long will they take to rule, how will they rule,
and will their rulings be respected?
Or imagine that, once again, the President and Vice
President are killed, and the Speaker is a member of the
opposite party. This time, however, the Speaker declines the
opportunity to act as President--in a public-minded effort to
prevent a change in party control of the White House as the
result of a terrorist attack. And imagine that the President
pro tempore of the Senate acts similarly. The Secretary of
State thus becomes Acting President. In subsequent weeks,
however, the Secretary takes a series of actions that upset the
Speaker. The Speaker responds by asserting his right under the
statute to take over as Acting President. The Secretary
counters that he cannot constitutionally be removed from the
White House by anyone other than a President or Vice President,
because under the Constitution, he is entitled to act as
President ``until the disability [of the President or Vice
President] be removed, or a President shall be elected.''
Confusion and litigation ensue. Who is the President?
Or imagine that the President, Vice President, and
Speaker are all killed, along with numerous members of
Congress--for example, as the result of an attack during the
State of the Union address. The remaining members of the
House--a small fraction of the entire membership, representing
just a narrow geographic region of the country and a narrow
portion of the ideological spectrum--claim that they can
constitute a quorum, and then attempt to elect a new Speaker.
That new Speaker then argues that he is Acting President. The
Senate President pro tempore and the Secretary of State each
assert competing claims that they are President. Who is the
President?
Or finally, notice that the President, Vice
President, Speaker, Senate President pro tempore, and the
members of the Cabinet all live and work in the greater
Washington, D.C. area. Now, imagine how easy it would be for a
catastrophic terrorist attack on Washington to kill or
incapacitate the entire line of succession to the Presidency,
as well as the President himself. Who is the President?
In every one of these scenarios, we do not know for sure who the
President is--a chilling thought for all Americans. In an age of
terrorism and a time of war, this is no longer mere fodder for Tom
Clancy novels and episodes of ``The West Wing.'' These nightmare
scenarios are serious concerns after 9/11. On that terrible day,
federal officers ordered a dramatic evacuation of the White House, even
shouting at White House staffers: ``Run!'' On that day, the Secret
Service executed its emergency plan to protect and defend the line of
Presidential succession--for the first time ever in American history,
according to some reports. And in subsequent months, the President and
Vice President were constantly kept separate, for months and months
after 9/11, precisely out of the fear that continuity of the Presidency
might otherwise be in serious jeopardy.
Senator Lott and I have introduced legislation (S. 2073) to reform
our Presidential succession system, to help ensure that we have answers
to these disturbing questions, and to prevent any of these nightmare
scenarios from ever coming true. Likewise, Representatives Sherman,
Cox, and others have introduced proposals to reform the Presidential
Succession Act. It is time for Congress to debate and vote on these
bills.
RESOLUTION TO ENSURE SMOOTH PRESIDENTIAL TRANSITIONS
I have also introduced a resolution (S. Res. 419) to deal with the
special problems of Presidential succession that could arise during a
particular window of vulnerability--the period of time surrounding the
inauguration of a new President. And I am especially pleased that
Senator Feinstein and Representative Sherman have lent their names and
support to this effort. After all, members of both parties should agree
that terrorists should never be able to determine, by launching a
terrorist strike, which party controls the White House.
Imagine that it is January 20, the inauguration date for a new
incoming President. The sun is shining, and the American people are
watching. The new President and Vice President sit on the center
platform just steps away from the Capitol Rotunda, joined by American
and foreign dignitaries, including leaders of both Houses of Congress.
It is a beautiful day--but as national security and continuity of
government experts have long recognized, it is also a window of
vulnerability. If terrorists launched a successful strike on
Inauguration Day, it could wipe out not only our new President, but
also the first three people who are in the line of Presidential
succession under our current Presidential succession statute--the Vice
President, the Speaker of the House, and the President pro tempore of
the Senate.
What happens next?
Well, imagine that the election of the prior year had resulted in a
change of political party control of the White House. During previous
Presidential transition periods, a new incoming President has had to
serve with Cabinet members from the prior Administration--including
sub-Cabinet officials from the prior Administration acting as Cabinet
members--for at least some period of time. That means that, in the
event of a successful inaugural day attack, the official who could rise
to become Acting President, perhaps serving for four full years, could
very well be a member of the outgoing Administration--indeed, a member
of the political party that the American people expelled from office at
the most recent election. In effect, terrorists have successfully
determined the political party that controls the White House.
There is a solution. An incoming President cannot exercise the
constitutional powers of the President, in order to ensure a smooth
transition of Government, until noon on the 20th day of January,
pursuant to the terms of the Twentieth Amendment of the Constitution.
Accordingly, cooperation between the incoming and the outgoing
President is the only way to ensure a smooth transition of government.
Whenever control of the White House shall change from one political
party to another, the outgoing President and the incoming President
should work together, and with the Senate to the extent deemed
appropriate by the Senate, to ensure a smooth transition of executive
power, in the interest of the American people. Accordingly, the
resolution establishes a non-binding protocol--a protocol with three
parts.
First, the resolution states that an outgoing President should
consider submitting the nominations of individuals to the Senate who
are selected by the President-elect for offices that fall within the
line of succession. Under the current Presidential succession statute
(3 U.S.C. Sec. 19), that means the members of the Cabinet, defined as
the heads of the statutory executive departments (5 U.S.C. Sec. 101).
Second, the resolution provides that the Senate should consider
conducting confirmation proceedings and votes on Cabinet nominations,
to the extent deemed appropriate by the Senate, between January 3 and
January 20 before the Inauguration. Of course, nothing in the
resolution purports to alter the constitutional powers of either the
President or the Senate, and indeed, nothing in this resolution could
constitutionally do so.
And third, the resolution encourages the outgoing President to
consider agreeing to sign and deliver commissions for all approved
nominations on January 20 before the Inauguration--all to ensure
continuity of government.
This resolution has received strong support amongst experts in the
fields of continuity of government and constitutional law. This is a
truly nonpartisan effort, so I am particularly pleased that the
resolution is so enthusiastically supported by constitutional legal
experts like Walter Dellinger, Cass Sunstein, Laurence Tribe, Michael
Gerhardt, and Howard Wasserman.
Throughout history, Congress has acted consistently and in a
bipartisan fashion to encourage measures to ensure the smooth
transition of Executive power from one President to another. Think, for
example, of the Presidential Transition Act of 1963, and its subsequent
amendments. In that Act, Congress concluded that ``[t]he national
interest requires'' that ``the orderly transfer of the executive power
in connection with the expiration of the term of office of a President
and the inauguration of a new President . . . be accomplished so as to
assure continuity in the faithful execution of the laws and in the
conduct of the affairs of the Federal Government, both domestic and
foreign.'' Congress further concluded that ``[a]ny disruption
occasioned by the transfer of the executive power could produce results
detrimental to the safety and well-being of the United States and its
people.'' Accordingly, Congress expressed its intent ``that appropriate
actions be authorized and taken to avoid or minimize any disruption''
and ``that all officers of the Government so conduct the affairs of the
Government for which they exercise responsibility and authority as (1)
to be mindful of problems occasioned by transitions in the office of
President, (2) to take appropriate lawful steps to avoid or minimize
disruptions that might be occasioned by the transfer of the executive
power, and (3) otherwise to promote orderly transitions in the office
of President.'' This resolution embodies the same spirit expressed in
the Presidential Transition Act.
______
I hope that today's hearing will prove to be an integral step in a
longer process in both Houses of Congress of ensuring that our more
than 200-year experiment in self-government will never perish from this
earth. In an age of terrorism and a time of war, few things could be
more important than ensuring that the United States government--the
nation's most vital instrument of national security--is failsafe and
foolproof, against even the most devious and destructive of terrorist
plots. Nobody likes to plan for their demise, but failure to do so is
foolish and dangerous. We must begin the process of sending the message
to terrorists that there is nothing they can do to stop the American
government from securing freedom here and around the globe. Twenty
years ago, after nearly killing Prime Minister Margaret Thatcher and
leading members of her government, I.R.A. terrorists issued a chilling
threat: ``Remember, we only have to be lucky once. You have to be lucky
always.'' The American people should not have to rely on luck. The
terrorist attacks of September 11 did not succeed in decapitating our
government. But we may not be so lucky the next time.
Mr. Chabot. I now recognize myself for 5 minutes for the
purpose of asking questions.
Mr. Sherman, I'm going to give you 2 of my first 5 minutes
right here to continue what you would like to--whatever points
you'd like to make that you didn't have an opportunity to make
in your statement.
Mr. Sherman. Thank you for your graciousness, Mr. Chairman.
Most scholars believe that the electoral college cannot
meet a second time, thus, creating a unique vulnerability
between when the Electoral College meets and when the new
President is sworn in and when the new President has some
Cabinet officers who are confirmed. A resolution introduced by
Senators Cornyn and Feinstein, a similar resolution I
introduced in the House, and a section of the proposed
legislation, would urge the President-elect, right when--right
after the Electoral College meets, to transmit to the then-
serving President the names of individuals that he or she is
planning to appoint to at least some of the Cabinet offices.
Those that the then-serving President finds acceptable would be
sent to the Senate for confirmation, and these new Cabinet
officers would be in line of succession. At least one of these
new Cabinet officers would be held in a secure area during the
inauguration ceremony just as we hold a Cabinet officer in a
secure area during the State of the Union address.
There is of course the risk that the outgoing President,
the incoming President and the Senate will not cooperate, and
there will be no Cabinet officers available on January 20th
when the new presidency begins. In that case alone we should
turn to congressional leadership. I realize that might be
subject to some challenge, but this is a highly unlikely
circumstance. But even then, the congressional leader called
upon should be one designated by the President-elect. After the
casting of the Electoral College votes, the President-elect
could file with the Clerk of the House and the Secretary of the
Senate, a document indicating which House leader, the Speaker
or the minority leader, which Senate leader, the majority
leader or the minority leader, would succeed if the worst could
happen.
Thank you for the time.
Mr. Chabot. Thank you. Thank you very much.
I've got 3 minutes left of my questioning. Let me just go
to a couple other issues real quick. Would any of the Members
like to comment on--I had heard the speculation or possibility
of including governors in the line of succession. Would any of
the Members like to address what they might think about that
idea? Mr. Baker?
Mr. Baker. There are constitutional problems associated
with that. I believe under the current system without a
constitutional amendment and assuming that State law permits
it, because there are some State law issues that might prevent
it, there may be a way for a President to federalize a State
governor, as the commander in chief of the State's National
Guard, as a Federal officer. That would then make that person
an officer of the United States. You would have to amend the
statute to provide for it, so I think it could be worked out.
It's not free from constitutional doubt, but at a minimum it's
at least as constitutional as the present set of arrangements.
Mr. Chabot. Any other thoughts on that that anybody would
like to share? Yes, Mr. Amar?
Mr. Amar. If one of the ideas is geographic, that this, the
Capitol is a special target and that it's useful to have
someone sort of, as it were, in the line of succession but very
much out of the line of fire, the idea of an Assistant Vice
President, someone just designated to be in the line of
succession but out of the line of fire, perhaps a former
President. Think of it as the succession version of the
designated hitter, who doesn't basically--who's not actually
out there on the field most of the time, but is basically held
back in reserve to do one and only one thing, which is to
provide the American people a real sense of assurance and
security, and maybe even familiarity in this highly-unusual
event, including even the past President.
Mr. Chabot. Thank you. I've got about a minute left.
Let me ask the three panel members here. I don't know if
you've all had a chance to read Mr. Sherman's proposal, but do
any of you have--are there any things that concern you about
that or any changes that you all think should be made in that?
Mr. Amar. I think the Congressman has really done a lot of
very fine work, and I want to thank him and commend him for
helping to bring visibility to it. And I do think in very, very
highly unusual situations where you really try to have Cabinet
succession, officer succession, and everyone's gone, I think
only a real constitutional zealot, maybe without good judgment,
would say you can't have congressional leaders in that
circumstance because the Constitution really isn't a suicide
pact, and so I think I appreciate sort of the prudence involved
there.
Of course, there are other constitutional scholars, so
there might be questions raised, but we'd be in such an unusual
situation, who's going to even be around to raise the questions
if we've gone through that many people?
Mr. Chabot. Mr. Neale, did I see you going for your button
there?
Mr. Neale. Right. There are so many options and so many
possibilities and what-ifs involved in this process, and I
think that Mr. Sherman has exhaustively reviewed them, and I
think has provided for almost any conceivable contingency in
his proposed legislation.
Mr. Chabot. Mr. Baker?
Mr. Baker. I have not read it closely, and I intend to do
it, but I'm in substantial agreement from everything that I've
seen. It's certainly a huge step in the right direction, and I
applaud the Congressman for doing it.
There's one issue that I think is very important, and it's
also where I and Professor Amar disagree, but it's an issue I
mentioned of the good bumping versus the bad bumping. I do
think that it is necessary to provide in the case of Cabinet
succession, to allow a more senior Cabinet officer, who is
temporarily unavailable. On September the 11th Colin Powell was
in South America. If we had had to make instant command
decisions within 10 minutes, somebody had to give the order, do
we shoot down this other airliner, and the military had gone to
Treasury Secretary Paul O'Neill and he had made that decision,
he would be acting President. My view is in that kind of
extreme situation, the more senior this person who is
authorized and contemplated by Congress as becoming acting
President should do so when they become available.
So with that one qualification, that I think we need to
provide for bumping by a pre-existing more senior officer who's
not available at the time, I'm in general agreement with what
Congressman Sherman has proposed.
Mr. Amar. I'm not sure we disagree actually on that for the
same prudential reason, that's, you know, very unusual, and
only a purist might say----
Mr. Chabot. Thank you very much.
Mr. Sherman. Mr. Chairman, if I could just quickly comment
on that.
Mr. Chabot. Yes.
Mr. Sherman. I think the legislation will conform to Mr.
Baker's objective, and the one idea put forward by the panel
that is not in my legislation is the creation of a new officer,
whether Second Vice President or Minister, I think it's a fine
idea. I'm just not sure--I don't know whether it would sell
with the Committee or not. If you want to create new officers,
I'm all for it.
Mr. Chabot. All right. We just created some additional
judges in the 9th Circuit. [Laughter.]
The gentleman from New York is recognized for 5 minutes.
Mr. Nadler. Thank you.
Let me start by commending Congressman Sherman for giving
it all of this thought and coming up with some very interesting
ideas, and also expressing my satisfaction at hearing two
members of the panel express the view that in a time of crisis
there would be no people with a lack of judgment who would come
forward despite the situation. I'm not so sure that's true. I
think you have to anticipate that there will always be people
with lack of good judgment who may be purists or whatever, and
nail things down.
Let me ask--I'm not sure who this question is directed to,
so anybody take it. In talking about the Cabinet officer or the
person in line of succession who's, quote, ``not available,''
who's out of Washington, let's say.
Why would being away from Washington preclude a statutory
officer from assuming the presidency, especially in this world
of modern communications? Even almost 40 years ago, Vice
President Johnson was sworn in in an airplane in Dallas. Now,
yes, if someone were in Antarctica or incommunicado in Vienna
or something--I don't know why he'd be incommunicado--be out of
the country, yeah, but in most circumstances doesn't have to be
in Washington.
Mr. Baker. Congressman, if I can respond to that because
I've dealt with that.
Mr. Nadler. Please.
Mr. Baker. I agree in principle, but circumstances change.
And what's striking, if you look at the accounts of what
happened on the day President Reagan was shot--and this is only
25 years ago--we had a Vice President who was in transit back
to Washington, and there was no really effective communication
between him and the members of the Cabinet at the time. And
essentially they were making decisions in the Situation Room
without the Vice President, apparently because they couldn't
effectively communicate. So there may be situations where the
military in particular has a time urgent requirement to make a
decision for an order----
Mr. Nadler. Do you shoot down the plane?
Mr. Baker. Do you shoot down the plane? And the Secretary
of the Treasury--the Secretary of State, Colin Powell, who may
be in South America in a meeting, they can't get to him right
away, you need authority immediately. But the Treasury
Secretary is down the street. We've got him on the phone. He
makes that decision, under the existing statute he becomes the
President----
Mr. Nadler. But then the question becomes--I understand
that, and that makes sense. And then the question becomes,
okay, Colin Powell is in South Africa, you can't get hold of
him right away. The Treasury Secretary is supposed to be giving
a speech at some college in New Jersey at 10 o'clock, but
you're not exactly sure where he is at the moment, maybe in his
former law partner's office shooting the breeze before he gives
a speech. Who makes the decision whether to get in touch with
him, or jump to the next guy who's standing in the next room?
Mr. Baker. I think that has to be, you know, a good faith
decision made by the people in the Executive Branch, in the
White House, if there is a White House left. I mean I
understand that FEMA has procedures in place to deal exactly
with this kind of situation, but you go down the line. We try
to--and I understand that the Office of Legal Counsel has
issued advisory opinions within the Administration about how to
deal with this kind of situation. I think there must be a good
faith effort made to reach the first person, the most senior
person available, but there are going to be situations where
the more senior person is simply not available at the time.
Mr. Nadler. I understand. My question was, who makes the
decision that that person is or is not available, and therefore
jumping to the next guy, and what happens if someone questions
that decision?
Mr. Amar. I have one thought about this, that--which is--
and it maybe avoids any constitutional problem. The Secretary
of State in that scenario is the acting President, and until he
is actually--whether we can't reach him or not, until we know
that he's dead or he's turned it down, he's the acting
President, and so we don't even have bumping. But he may have
predesignated--and it would be a requirement in effect that he
predesignate someone to act by proxy. This body understands the
idea of proxy, and presumably----
Mr. Nadler. We pretend that it doesn't usually, but okay.
Mr. Amar. And there's still pairing and other things or
maybe not. But you could imagine basically the other person
isn't really quite technically acting President but he is the
proxy delegatee of the person who's first in line.
Mr. Nadler. Thank you.
I yield back.
Mr. Chabot. The gentleman yields back.
The gentleman from Iowa, Mr. King, is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman.
I'd like to thank all the witnesses for your testimony.
This is an intriguing subject matter, and I particularly
appreciate Representative Sherman's look into this and how it's
intrigued you all.
Some of these questions intrigue me as well, and I'll maybe
work backwards through some of this testimony and direct my
first question to Mr. Sherman. And that is, the direction of
how the electors might vote in the event of a disaster in the
case of a Vice President, and this is a case that you
referenced. Do we have a statutory or constitutional direction
for electors today when they vote for the President?
Mr. Sherman. At the present time there are a number of
States who have statutes of questionable constitutionality,
requiring the electors to be faithful. Just in our last
election one elector from the District of Columbia, I believe,
abstained rather than voting for the Democratic nominee, to
which he or she was pledged, and I'm not sure that any new
statute should change the freedom of electors. What controls
them and makes them faithful for the most part is they are
representatives of a party that has given them widely-accepted
direction. You can go to any Democrat and say, ``Who's your
nominee for President?'' and they know who it is, and Vice
President. Likewise in the Republican Party.
If--I think you maximize the likelihood of electors being
faithful to a plan if they know what the plan is.
Mr. King. But in those events that electors have broken
from that tradition have been extraordinarily rare.
Mr. Sherman. Very rare.
Mr. King. And if we set even a Federal directive out there
that was a recommendation potentially, that would also be
unprecedented from a Federal perspective, although not from a
State?
Mr. Sherman. It would be perhaps unprecedented, but I think
that generally as a Nation we expect Electoral College members
to be faithful.
Mr. King. Then going to another subject matter about how
the succession might work, and without going through the
sequences, how the President might--someone might succeed to
the presidency and then be bumped by someone of a higher
standard. Can he--I have a little trouble getting to that. Once
someone is sworn in as the President of the United States, I
would think the stature of the presidency would be enough to
resist any attempt to bump no matter the circumstances. Have
you considered that down through, and really, do you think that
plays out?
Mr. Sherman. Well, I know my fellow colleagues in Congress.
We don't get here without being ambitious. And if Professor
Amar came to one of us and said that he and most scholars felt
that we had the right to live in the White House, who amongst
us would choose more humble accommodations? [Laughter.]
I don't know what we would do under those circumstances,
but certainly a letter signed by 100 law professors saying that
you had the right to move in the White House would be very hard
to resist, and a letter signed by them saying: ``Every day you
wake up is a day you have a right to move into the White House,
should you choose,'' would cause some consternation. People
wouldn't know what the relevant person would do.
Mr. King. Thank you, Mr. Sherman.
Mr. Baker?
Mr. Baker. Congressman, I'd just like to respond. There's
one important distinction to keep in mind, to respond to your
question. Under the Succession Clause, we're dealing with
statutory successors, not the Vice President to the presidency.
Under the Succession Clause, a person does not become the
President. That's a huge distinction. You become the acting
President. And that's why, I mean the bumping, the displacement
by a more senior officer would be constitutionally permissible.
So it's not as if you become the President, although I'm sure
if we have a Speaker or Secretary of State, they may go ahead
and try to follow the precedent of 1841 when John Tyler said,
``Well, I'm the President.''
The Succession Clause originally contemplated that the Vice
President would be the acting President. That's been changed.
The 25th amendment constitutionalized the Vice President
becoming the President, but as far as statutory successors,
they only become the acting President, not the President, and
therefore, that's why bumping is constitutionally permissible I
think in certain circumstances.
Mr. King. Thanks for that distinction.
And I'm going to have a question for Professor Amar, and I
think he also has some input he would like to make, but into
your response, and watching our time tick down here, I'd like
to also hear something about your philosophy as to why you
would avoid the elected officials of Congress in preference for
the appointed Cabinet members. I would think the legitimacy
would reside with those who had actually stood for election
rather than those who have been confirmed by the Senate and
appointed by the President.
Mr. Amar. And that's, I think, what Harry Truman's
philosophy was when he signed that bill into law in 1947. Since
then the country, when it's really thought about it very
carefully, which it did after John Kennedy was assassinated and
the 25th amendment opted for a different model, the 25th
amendment model, which to repeat, was not on the books when the
'47 statute was adopted, is Nixon, then to Agnew, or if not
Agnew, Ford, and if not Ford, Rockefeller, and it's to the
handpicked successor of the person who was elected by the
American people to do the job for 4 years, with extra
legitimacy conferred basically by a special confirmation
process, which you could have by signalling with an Assistant
Vice President, that says this is something very special, and
even having the American people know who that name was before
they voted for a candidate.
So the 25th amendment model is actually not one of quite
elected officials. Gerald Ford wasn't elected, and yet,
there's, you know, a building here in his honor, and I saw his
statue yesterday in this building, in this complex, and so
that's actually the new constitutional model. And it
facilitates back and forth between a President and Vice
President, that you can't have--as long as you require--if you
have legislative leaders, they have to resign because they
can't be at both ends of Pennsylvania Avenue at once. This
system is just not going to work for temporary back and forth
things, which was after the Soviet Union got the bomb, which
again was after '47, a real redefinition of vice presidency as
at least someone who works very closely with the President
rather than the presiding officer of the Senate.
Mr. Chabot. The gentleman's time is expired.
Mr. King. Thank you very much.
Mr. Sherman. If I could just comment on that?
Mr. Chabot. Very briefly.
Mr. Sherman. Ford and Rockefeller both became President and
Vice President through an appointment process. They happened to
have been current politicians, but they could have been
anybody.
The present system puts in line the President Pro Tem of
the Senate. While he's elected by a State or she is elected by
a State, that's hardly a person chosen for national leadership,
and had two bullets flown in 1998, we would have had a 98-year-
old elected person serving as President, Mr. Strom Thurmond,
who had been elected but was rather old.
Mr. Chabot. The gentleman's time is expired.
The gentleman from Indiana is recognized for 5 minutes.
Mr. Hostettler. Let me follow up. I just have--I would like
to speak to an issue that's I think very fundamental in this
discussion, and I don't want to come across as naive in my
understanding of how the political process works these days.
But as we are the Constitution Subcommittee, I think it's
important for us to recognize when we talk about a line of
succession with regard to the Executive Branch, we are talking
about an Executive officer. We are not talking about a
legislative officer. And therefore, given that article I,
section 1 of the Constitution states that all legislative power
should be vested in a congress, and therefore, by definition
the term ``all'' meaning fairly exclusive, that no legislative
authority vests in the Executive Branch, that in fact, what we
are after in a line of succession for the Executive is an
executive, not a prime minister, not a leader of a party with a
particular philosophy by which will be continued at the absence
of one particular leader of--well, not a leader of a party. We
do not have a parliamentary system. We have a system by which
an executive is elected by electors through the Electoral
College, and we have popular elections for the legislature.
And so when we talk about a particular philosophy being
extended in the succession process, granted I don't--once
again, I don't want to come off as naive given what we are
seeing in the debates by Executives suggesting what they will
do legislatively if they are elected by the people in front of
whom they are debating, even though the electors put them in
office. I do want--I would hope that this Subcommittee, as we
deliberate on this very important issue, would bring us back to
the Constitution and the fact that regardless of who is in the
line of succession with regard to the President--and I'll ask a
question about constitutionally recognized, quote,
``officers,'' end quote, in just a moment--but that we are
looking for an executive, not a prime minister, not a supreme
legislator, but an executive, that according to article I--
excuse me--article II of the Constitution, shall, quote, take
care to faithfully, to execute the laws of the United States.
That's what they are to do. They are not to do anything other
than to be faithful to that execution.
So when we talk about a philosophy being consistent, then
we continue that, I think, unconstitutional dialog that says
that for some reason we are actually electing--the people are
electing a supreme legislator, that once we get a person into
the White House, that person will, will give everyone
prescription drugs, or will do whatever it is that--or will
return school prayer or whatever it is, that we are--that
hopefully we would say we are talking about an executive. And
so regardless of their philosophy they are to faithfully
execute the laws of the United States.
And so given that, the--would you all agree with that, that
the Constitution requires that an Executive really be fairly
free of a philosophy, any philosophy that rules the faithful
execution of the laws of the United States? Would you agree to
that?
Mr. Sherman. I'm not sure I would agree. When people voted
for Richard Nixon for President, Nixon had chosen Agnew. They
were getting Nixon-Agnew. They didn't really want George
McGovern, contrary to my efforts. Nixon chose Agnew. Then Nixon
chose Ford. Then Ford chose Rockefeller, and we ended that
presidential term with Ford-Rockefeller, having started it with
Nixon-Agnew. That was consistent with what people voted for.
Now, you can talk, maybe it's party or maybe it's they
wanted people who were on the Nixon team, which is not party,
but just that individual who they elected. If they had voted
overwhelmingly for Nixon-Agnew and had gotten Carl Albert, I
think that would have been a breach of democracy, because
although Mr. Albert was elected Speaker of this House, he
certainly was not reflective of who people voted for in the
presidential election.
Mr. Hostettler. Let me follow up with one question. What
laws do you think Speaker Albert would have executed outside of
the statutory regime, or what would he have executed that was
unlawful and outside of the statutory regime at the time or
constitutional regime?
Mr. Sherman. I am not an expert on Carl Albert. I know that
he was to the right of George Mcgovern. But it matters who's
President. It's not just competency. It's also about the
philosophy, and he might have--there are people here who know
far better than I. But I think this election we're having now
is not just about who's a competent executive. I mean we've got
people running major corporations who are very competent
executives. There's a difference between Albert and Nixon.
Mr. Chabot. The gentleman's time has expired.
There are no other questions from the Committee at this
time, and I want to thank very much the members of the panel
for giving us, I think, really very good, very helpful
testimony here this morning. Each Member will have five
additional days to submit information for the record. And we
will follow this very closely and look forward to discussing
this with Members of the Committee who might not have had the
opportunity to be here today and other Members of the Judiciary
Committee. So thank you very much for giving us the information
today.
And if there's no further business to come before the
Committee, we're adjourned. Thank you.
[Whereupon, at 10:45 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve King, a Representative in
Congress from the State of Iowa
Thank you, Mr. Chairman, for holding this hearing today to discuss
the effectiveness of our current procedure for selecting the person who
will serve as our president in the event something happens
simultaneously to our president and vice president.
The American President holds perhaps the most important position in
the world. He is commander-in-chief of the world's greatest military.
He serves as the leader of the world's only remaining superpower. He is
also one of the greatest targets for those who seek to hurt our nation,
to destroy the freedom we represent.
The horrors of September 11, 2001, highlighted the need for focus
on the issue before us today. Many speculate that the heroic passengers
of United Flight 93 saved all of us from the fate many Americans
suffered on that tragic day.
The legislation before us on the floor this week demonstrates how
hard we are working to save our nation from another tragedy like
September 11. Despite all our efforts, however, we need to be cognizant
of the fact that destroying America is still the number one terrorist
objective. We need to ensure that the policy we have set in place is
the appropriate one, should we, Heaven forbid, face another national
emergency in our future.
Thank you, Mr. Chairman.