[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

                              ----------                              

                            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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.

                                 
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