[Senate Hearing 108-928]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 108-928
 
ENSURING THE CONTINUITY OF THE UNITED STATES GOVERNMENT: THE PRESIDENCY 

=======================================================================

                             JOINT HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY

                                  and

                 COMMITTEE ON RULES AND ADMINISTRATION
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 16, 2003

                               __________

                          Serial No. J-108-40

                               __________

         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERB KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

                 Committee on Rules and Administration

                   TRENT LOTT, MISSISSIPPI, Chairman
TED STEVENS, Alaska                  CHRISTOPHER J. DODD, Connecticut
MITCH McCONNELL, Kentucky            ROBERT C. BYRD, West Virginia
THAD COCHRAN, Mississippi            DANIEL K. INOUYE, Hawaii
RICK SANTORUM, Pennsylvania          DIANNE FEINSTEIN, California
DON NICKLES, Oklahoma                CHARLES E. SCHUMER, New York
KAY BAILEY HUTCHISON, Texas          JOHN B. BREAUX, Louisiana
WILLIAM H. FRIST, M.D., Tennessee    TOM DASCHLE, South Dakota
GORDON SMITH, Oregon                 MARK DAYTON, Minnesota
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
              Carole J. Blessington, Majority Chief Counsel
                Kennie L. Gill, Democratic Chief Counsel

















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     3
    prepared statement...........................................    44
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........     6
Dodd, Hon. Christopher J., a U.S. Senator from the State of 
  Connecticut....................................................    21
    prepared statement...........................................    46
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    15
    prepared statement...........................................    48
Lott, Hon. Trent, a U.S. Senator from the State of Mississippi...     1
    prepared statement...........................................    66

                               WITNESSES

Amar, Akhil, Southmayd Professor of Law and Political Science, 
  Yale Law School, New Haven, Connecticut........................     6
Baker, M. Miller, Esq., McDermott Will & Emery, Washington, D.C..    12
Fortier, John C., Executive Director, Continuity of Government 
  Commission, and Research Associate, American Enterprise 
  Institute, Washington, D.C.....................................     9
Wasserman, Howard M., Assistant Professor of Law, Florida 
  International University College of Law, Miami, Florida........    14

                       SUBMISSIONS FOR THE RECORD

Amar, Akhil, Southmayd Professor of Law and Political Science, 
  Yale Law School, New Haven, Connecticut, statement.............    30
Baker, M. Miller, McDermott, Will and Emery, Washington, D.C., 
  statement......................................................    33
Fortier, John C., Executive Director, Continuity of Government 
  Commission, and Research Associate, American Enterprise 
  Institute, Washington, D.C., statement.........................    49
Lewis, R. Doug, Executive Director, the Election Center, Houston, 
  Texas, statement...............................................    60
Wasserman, Howard M., Assistant Professor of Law, Florida 
  International University College of Law, Miami, Florida, 
  statement......................................................    69


ENSURING THE CONTINUITY OF THE UNITED STATES GOVERNMENT: THE PRESIDENCY

                              ----------                              


                      TUESDAY, SEPTEMBER 16, 2003,

                                       U.S. Senate,
                                Committee on the Judiciary,
                     Committee on Rules and Administration,
                                                    Washington, DC.
    The Committees met, pursuant to notice, at 9:30 a.m., in 
room SR-325, Russell Senate Office Building, Hon. Trent Lott 
and Hon. John Cornyn, presiding.
    Present: Senators Lott, Cornyn, DeWine, Dodd, and Feingold.

 OPENING STATEMENT OF HON. TRENT LOTT, A U.S. SENATOR FROM THE 
                      STATE OF MISSISSIPPI

    Chairman Lott. The hearing will come to order.
    Thank you all for being here this morning. I know that 
there are a number of people that are interested in this issue 
that have responsibilities on the floor of the Senate right 
now. Senator Feingold did leave to go down to do a statement 
and will be returning shortly, and we expect other Senators 
will be joining us as we go forward this morning.
    This is a joint hearing, and I am really pleased to be able 
to co-chair this with the Senator from Texas, Senator Cornyn, 
who is Chairman of the Subcommittee with jurisdiction in this 
area, and who has really been focusing on continuity of 
Government and succession issues, and has brought a vigor and 
an interest in this that really has been very helpful.
    As I have gotten into this subject myself, I have become 
more and more interested and more and more concerned about 
where we are today in terms of Presidential succession. And so 
I think it is appropriate we have these hearings. I want to 
thank our witnesses for being here today. I will give you an 
appropriate introduction in a few minutes, and we will look 
forward to hearing from you.
    I want to begin with an interesting historical anecdote 
about the Senate Rules and Administration Committee and the 
issue of Presidential succession. After a major Senate 
reorganization in 1946, the Senate Rules Committee was merged 
with the Senate Privileges and Elections Committee, and the 
Senate Rules and Administration Committee was officially 
created in January 1947.
    The first public hearings held by the newly created 
Committee were on the subject of Presidential succession and 
how the system should be remodeled to deal with the advent of 
the atomic bomb, interestingly enough, the death of President 
Franklin Roosevelt, and other issues that were related to this 
subject.
    Since those 1947 hearings, no substantive legislation has 
been passed to deal with the gaps in the current Presidential 
succession system. So I think it is way past time for us to 
have these hearings, consider these matters, and hopefully even 
find a way to act. There are many areas where there is a gap in 
our planning for unexpected disasters, and this is obviously 
right at the top of that list.
    I have long been interested in this subject. Earlier this 
year, the Rules and Administration Committee considered and 
reported out S. 148, a bill by Senator DeWine and others, which 
added the Department of Homeland Security Secretary Tom Ridge 
to the line of Presidential succession. As you can see from the 
chart--do we have our chart up here?--Table 1, Secretary Ridge 
would be eighth in line of succession after the Attorney 
General. This bill has already passed the full Senate and is 
awaiting action in the House.
    Given the circumstances of the world today, it is vitally 
important that we have a system of Presidential succession that 
operates efficiently and effectively with minimal interruption. 
Since September 11, 2001, Congress has been studying all 
aspects of our Government's operations to ensure that we 
continue to function in the event of a catastrophe.
    The current statutes governing the Presidential succession 
system, as we have already noted, have not been dealt with 
since 1947. President Harry Truman was very insistent on this 
area being considered, but as a result of what happened with 
Harry Truman becoming President, the Vice Presidency remained 
vacant from 1945 to 1949. After several years of work from 
President Truman, Congress finally amended the Presidential 
succession statutes. As a result, the Presidential Succession 
Act of 1947 was adopted, and it is still in force today.
    Amazingly, the United States has been without a sitting 
Vice President on 18 separate occasions. As recently as 1963, 
when Lyndon Johnson ascended to the Presidency as a result of 
the assassination of President Kennedy, we did not have a Vice 
President from 1963 to 1965. And during Johnson's Presidency, 
many people worried about the situation. If a tragedy should 
befall President Johnson, what would happen? And we might have 
been faced with a difficult situation replacing the President 
as there was no Vice President and the sitting speaker, John 
McCormack, born in 1891, and President pro tem Carl Hayden, 
born in 1877, were certainly well advanced in years.
    In 1965, as a result of Johnson's ascension to the 
Presidency with no Vice President waiting in the wings, the 
89th Congress proposed the 25th Amendment to the Constitution. 
This amendment is a critical piece of the succession puzzle as 
we know it today, and we have used it twice already, when Jerry 
Ford was selected as Vice President and ultimately he became 
President, and then with the selection of Nelson Rockefeller. I 
was on the House Judiciary Committee at the time, Senator 
Cornyn, and was the first one to have an opportunity--on the 
Committee that had the first opportunity to deal with the 
confirmation process of a Vice President under the 25th 
Amendment.
    While the issue of Presidential succession has just 
recently regained the national spotlight, this issue has been 
debated and discussed over the years. In fact, during those 
very first hearings in 1947, the Chairman of the Rules and 
Administration Committee, Senator Wayland Brooks of Illinois, 
proposed forming a joint committee to deal specifically with 
the issue of Presidential succession. And there have been a 
plethora of succession issues that have been proposed over the 
years but no actions taken.
    When I have looked at the hearings on that, there are some 
very interesting quotes from the Senators that were involved in 
that, and they apply to today. Of course, in those days, they 
were worried just about the atom bomb. Well, you know, that is 
still a factor we have to consider, a dirty bomb or a nuclear 
bomb or some other travesty that could occur, and we could have 
a real mess on our hands.
    Another problem with it, of course, is the bumping 
procedure that might be employed whereby, you know, the Speaker 
might become President for a while, but then once a Vice 
President would be selected, I guess the Speaker would be 
bumped back to the position he had previously held. There would 
be a problem with how an interim Speaker would be selected. A 
real musical chairs could occur.
    I think the area that really is the most interesting is the 
fact that even though it was not always the case, we have 
Members of Congress in the line of succession. I understand 
from the readings that I have been doing that that issue was 
never really settled by our Founding Fathers and probably would 
pretty heatedly debated. But if you look back just in recent 
history where if something had happened to President Clinton 
and Vice President Gore, Newt Gingrich could have at one point 
become President. Then there would be a problem with selecting 
a new Speaker and what would you do with the Cabinet. It has 
been described as that sort of thing could cause not a 
succession but a revolution in a way. And we have got another 
chart up there that points out how many times--you know, what 
would have happened if this had occurred, both with Democrat 
and Republican administrations.
    For the past 50 years, there have been many, many years 
where you had Congress controlled by one party and the 
Presidency the other. So this is an area that we need to think 
about.
    I do not want to tell Senator Stevens this yet, but I 
really have come to the conclusion that congressional leaders 
should be taken out of the line of succession. We will have to 
make it prospective so that Denny Hastert and Ted Stevens will 
be happy with that. But I think it is a real problem, and I 
have for years.
    [The prepared statement of Senator Lott appears as a 
submission for the record.]
    So I am glad we are having this hearing. Again, I want to 
thank our panel of witnesses. But before I introduce them, let 
me call on Senator Cornyn, who has really been doing good work 
in this and other related issues, for his opening statement.

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
                             TEXAS

    Senator Cornyn. Well, thank you, Senator Lott, for those 
thorough introductory remarks, and thank you for your 
leadership on this important hearing.
    As you recounted, the Senate Rules Committee has 
jurisdiction over the Presidential succession statute, and the 
Senate Judiciary Committee has jurisdiction over constitutional 
issues through the Subcommittee that I chair, the Senate 
Subcommittee on the Constitution, Civil Rights, and Property 
Rights. So today's joint hearing of the two Committees on the 
topic of Presidential succession is quite appropriate--and 
after 9/11, some 2 years later, quite important.
    I want to thank Senator Hatch, the Chairman of the 
Judiciary Committee, who, shortly after I spoke on this subject 
on the Senate floor, invited me to chair the hearings for the 
full Judiciary Committee, which, of course, I gratefully 
accepted. And I want to thank him again today for his 
leadership and for giving these issues the serious 
consideration that they deserve.
    Last Tuesday, I chaired the first in a series of hearings 
on continuity issues to examine serious weaknesses in our 
ability to ensure the continuity of Congress. Fortunately, with 
respect to today's hearing, the Constitution gives us ample 
authority to ensure the continuity of the Presidency, even as 
it may be inadequate with respect to Congress itself. 
Unfortunately, however, the current Presidential succession 
law, enacted, as you heard from Senator Lott, in 1947, has long 
troubled the Nation's top legal scholars, some of whom we have 
here today, across the political spectrum as both 
unconstitutional and unworkable.
    This is an intolerable situation. We must have a system in 
place so that it is always clear and always beyond doubt who 
the President is, especially in times of national crisis.
    Yet our current succession law fails badly under that 
standard. Imagine the following scenarios.
    The President and Vice President are both killed. Under the 
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 of 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 officers 
who are constitutionally eligible to serve as President. 
Believe it or not, the Secretary actually has a rather strong 
case, in my view. In fact, he can cite for support the views of 
James Madison, the father of our Constitution, who argued this 
precise point in 1792.
    Who is the President? Whose orders should be followed by 
our armed forces, by our intelligence agencies, and by domestic 
law enforcement bureaus? If lawsuits are filed, will courts 
accept jurisdiction? How long will they take to rule? How will 
they rule? And how will their rulings be respected?
    Or imagine, 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 a result of a terrorist 
attack. The Secretary of State thus becomes the 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 the President 
or Vice President because under the Constitution he is entitled 
to act as President until the disability of the President or 
Vice President is removed or a President shall be elected. 
Confusion and litigation ensue. Again, who is President?
    Or imagine that the President, Vice President, and Speaker 
are all killed, along with numerous Members of Congress, for 
example, as a 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 tem and 
the Secretary of State each assert competing claims of their 
own that they are President. Again, who is President?
    Or, finally, notice that the President, Vice President, 
Speaker, Senate President pro tem, 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 in Washington to kill or incapacitate the 
entire line of succession to the Presidency as well as the 
President himself. Then who would be President?
    In each 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 or episodes of ``West Wing.''
    These nightmare scenarios are serious concerns after 9/11. 
On that terrible day, Federal officers ordered dramatic 
evacuations 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. 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 the 
continuity of the Presidency might otherwise be in serious 
jeopardy.
    I believe we must fix the Presidential succession law, and 
fix it now, so that these nightmare scenarios will never come 
true and will never again be able to haunt the American people 
or our form of Government.
    I look forward to the testimony, Mr. Chairman, of these 
exceptional witnesses and to learn what suggestions they might 
have for reforming the Presidential succession law. After all, 
we have had 2 years since 9/11 to do this. Two years is too 
long, and the time to plan for the unthinkable is now.
    Thank you, Senator Lott.
    [The prepared statement of Senator Cornyn appears as a 
submission for the record.]
    Chairman Lott. Thank you, Senator Cornyn.
    Senator DeWine, we already gave you credit for your 
interest in these succession issues, and I have noted that your 
legislation, S. 148, passed the Senate June 26th and is now 
pending before the House. We would be glad to hear any opening 
statement you would like to make at this time.

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Mr. Chairman, I will be very, very brief. I 
just want to congratulate you and Senator Cornyn for holding 
this hearing.
    As you both have said, there are almost unimaginable 
scenarios that are not unimaginable, that certainly could 
happen, that compel us to take action and to address these 
concerns. And 2 years is too long. It is time for this Congress 
to take action. It is time for this Congress to address the 
concerns that we have.
    And so I am very, very happy that we are holding this 
hearing today. It is about time.
    Thank you.
    Chairman Lott. Thank you, Senator DeWine.
    Our first witness is Professor Akhil Amar. Mr. Amar has 
served as a distinguished law professor at Yale University for 
two decades and has been extensively published on the issues of 
Presidential succession and the U.S. Constitution. He is 
considered one of the foremost authorities on the subject of 
Presidential succession and the Constitution.
    Dr. John Fortier--is that the correct pronunciation?--is an 
accomplished scholar at the American Enterprise Institute and 
serves as Executive Director for the Continuity of Government 
Commission. He has written and studied on these issues of 
governmental continuity as well as Presidential succession.
    And Mr. Miller Baker is a partner in the law firm of 
McDermott Will & Emery. He previously served as counsel to the 
Senate Judiciary Committee as well as at the Justice 
Department. He is also a former intelligence officer for the 
U.S. military and has been recently published on Presidential 
succession issues by the Federalist Society.
    Our final witness is Professor Howard Wasserman. Professor 
Wasserman teaches law at Florida International University 
College of Law and has studied and published on the subject of 
Presidential succession and the U.S. Constitution.
    We look forward to hearing from all of you, and if you 
would give us your testimony in that order, and after you have 
testified, we will have perhaps other Senators here that would 
like to make statements, and then we have got a series of very 
interesting questions we would like to propound to you.
    Professor?

    STATEMENT OF AKHIL AMAR, SOUTHMAYD PROFESSOR OF LAW AND 
   POLITICAL SCIENCE, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT

    Mr. Amar. Thank you, Mr. Chair. My name is Akhil Reed Amar. 
I am the Southmayd Professor of Law and Political Science at 
Yale and have been writing about the topic of Presidential 
succession for over a decade. In February 1994, I offered 
testimony on this topic to the Senate Judiciary Subcommittee on 
the Constitution, and I am grateful for the opportunity to 
appear here today. As my testimony draws upon several articles 
that I have written on the subject, I would respectfully 
request that these articles be made part of the record.
    The current Presidential succession Act, 3 U.S.C. 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 alternative.
    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 President and Vice President are unavailable. 
House and Senate leaders are not ``officers'' within the 
meaning of the Succession Clause. 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.
    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 someone else 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. And I think that the scenario 
that Senator Cornyn offered very vividly captured some of the 
problems with instability and how it weakens the Presidency in 
a variety of situations.
    Now, 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 specific words of the 
Succession 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 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--in part to keep it 
out of the courts and to reassure the country. And, again, I 
think the scenarios that Senator Cornyn offered were very vivid 
and, to me, quite powerful. 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. And, Senator Lott, I think that is partly what you 
were talking about with having to leave your House job and the 
instabilities that that would create. The House needs to get 
new leadership and all of that. section 19's rules also run 
counter to the approach of the 25th Amendment, Senator Lott, 
which you mentioned, 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.
    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 
Richard Nixon to Gerald Ford to Nelson Rockefeller, for 
example, 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 the nominee. And, Senator Lott, 
it was very interesting to hear that even as a House Member, 
you were involved in the confirmation process, which ordinarily 
does not happen, but the 25th Amendment creates that special 
level of participation and legitimacy.
    So if the 25th Amendment reflects the best approach to 
sequential double vacancy--when the top two positions, 
President and Vice President, become unavailable at slightly 
different times, first one, then the other--a closely analogous 
approach should be used in the event of simultaneous vacancy 
when they both become unavailable at the same instant. Congress 
could, if it wanted to, create a new Cabinet post--it could be 
called Assistant Vice President or Second Vice President or 
First Secretary; the name is not particularly important. But 
this new position would be one that would 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, perhaps out of this 
city altogether in a location that would be very far removed 
from the President and Vice President in general.
    The democratic mandate of this Assistant Vice President or 
First Secretary 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 third in line. Cabinet 
officers should follow the Assistant Vice President in the 
longer line of succession, as is true in the current statute.
    This solution solves the constitutional problems I 
identified. The new Assistant Vice President would clearly be 
an ``officer''; bumping would be eliminated. The solution also 
solves the practical problems. 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 Vice President 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.
    Thank you.
    [The prepared statement of Mr. Amar appears as a submission 
for the record.]
    Chairman Lott. Thank you.
    Mr. Fortier?

STATEMENT OF JOHN C. FORTIER, EXECUTIVE DIRECTOR, CONTINUITY OF 
    GOVERNMENT COMMISSION, AND RESEARCH ASSOCIATE, AMERICAN 
             ENTERPRISE INSTITUTE, WASHINGTON, D.C.

    Mr. Fortier. I would like to thank the Rules and Judiciary 
Committees for holding this hearing on the important subject of 
Presidential succession.
    Let me salute the Senate for already having begun this 
task. Senator Lott mentioned this morning S. 148, Senator 
DeWine's bill, which passed through the Rules Committee and the 
full Senate. I support the substance of the bill, putting the 
Secretary of Homeland Security in the line of succession, but 
also applaud the thinking behind it. Typically, when a new 
Cabinet position, we just lump them at the end of the line of 
succession without thinking about their relative importance. In 
this case, we did think about it, and we moved the Cabinet 
Secretary up to a place below the big four Cabinet members, but 
thinking about his relative importance with national security 
matters.
    If you use this as a model to think through and not follow 
simply the status quo of the current Presidential succession 
Act, I think we will be moving in the right direction.
    In my written testimony, I provide a number of areas that 
need improvement, but let me highlight three this morning.
    First, everyone in the line of succession lives and works 
in the Washington, D.C., area. In the nightmare scenario of 
terrorists detonating a nuclear device, it is possible that 
everyone in the line of succession might be killed. Imagine the 
aftermath: a parade of generals, Governors, and Under 
Secretaries claiming to be in charge.
    To fix this problem, I have a solution which is similar in 
some ways to the one that Professor Amar presented, but I 
suggest that we create four or five offices that would be lower 
down the line of succession that would be held by people 
outside of Washington. In particular, we can imagine that a 
President would nominate sitting Governors, if the State 
Constitution of that State did not forbid them to hold Federal 
office, which some States do and some States don't; or former 
public figures at a high level--former Presidents, former Vice 
Presidents, Cabinet members, or Members of Congress. These 
offices could be, through a regular nomination and confirmation 
process, put in place. We would ask them to generally stay 
outside of Washington, receive regular security briefings, and 
the office could be structured with some additional duties, 
such as regional coordination of homeland security issues. My 
proposal is to put them in the middle of the Cabinet, somewhere 
below the top five officers. They would serve as an ultimate 
backstop if the worst were to happen.
    Second, consider the role of congressional leaders in the 
line of succession. I think it is fair to say that the dominant 
view of constitutional scholars is that it is unconstitutional 
to have Members of Congress in the line of succession, 
although, of course, practice has gone in the other direction 
for many years.
    I share this view that at least the Framers did not intend 
to put Members in the line of succession, but in my testimony, 
I try to walk through the various scenarios that Congress might 
be called on to succeed to the Presidency congressional leaders 
and identify which of them makes sense for us and which of them 
don't. And if you come to the same conclusions that I do, you 
will find at least a way of reducing the role of Congress in 
the line of succession.
    For example, Congress could potentially--or a Member of 
Congress could come to the Presidency based on the death, the 
incapacity, the resignation, the removal, or the failure to 
qualify of the President. And to take the incapacity issue, for 
example, do we want a Speaker of the House taking over 
temporarily for a President? It could be a Speaker of the House 
of the other party. It would be a case where the Speaker would 
have to resign his or her seat in Congress and as Speaker. If 
you have a scenario of a President who is fading in and out of 
capacity, has a condition that comes back into health, then 
displaces the Speaker of the House, potentially another Speaker 
of the House, newly elected, would then have to take over. It 
makes little sense for an incapacitation scenario to involve 
Congress. And several of the other scenarios I also find 
problematic.
    The one case where I would recommend keeping Congress in 
the line--and I think this is consistent with the Constitution 
because it comes from a different provision in the 20th 
Amendment--is that of the failure to qualify of a President. In 
the case where an election controversy goes all the way up to 
January 20th and we have no President, or in the case of an 
attack that occurs shortly before the inauguration, there is no 
Cabinet from the incoming administration, and the only other 
option we would have would be to go back to the Cabinet of the 
prior administration.
    Third, think of individual scenarios, and in particular, 
the inauguration scenario, which I referred to. This is perhaps 
the most vulnerable time for Government when all of the people 
at the top of the line of succession gather together for a 
ceremony, and yet none of the people in the line of succession, 
the Cabinet members for the new administration, have been 
nominated. Consider for a moment what would happen if 
terrorists had set off a bomb during the inaugural ceremony. 
The President-elect, the Vice President-elect, Speaker, and pro 
tem are likely there and would have perished along with many 
Members of Congress and the Supreme Court. Who would succeed to 
the Presidency? Well, the Cabinet, but the Cabinet of the prior 
administration. Imagine such an attack had occurred in 2001. A 
country expecting Republican George W. Bush to take office 
would have found themselves with a Democratic President Larry 
Summers. As Secretary of the Treasury, Summers was the highest 
ranking Clinton Cabinet member eligible to serve as President.
    But the scenario is actually even more complicated than 
that, as many Cabinet Secretaries typically resign before the 
inauguration, leaving Acting Secretaries in their place. And an 
Acting Secretary is in the line of succession as long as that 
person has been confirmed by the Senate for some position. So 
if it is a political appointee, a number 2 or a number 3 person 
at the State Department, that person will take over as Acting 
Secretary of State and be in the line as well.
    I have a piece coming out entitled ``President Michael 
Armacost?'' who, if you know, the president of Brookings could 
have been the President of the United States in the scenario of 
the 1989 inaugural.
    One of the difficulties here is that there is a gap between 
when the President can take office and can nominate his Cabinet 
and the Senate can come in to confirm them. At times, in cases 
of quick action, there is a gap of only 3 or 4 hours. But it 
has been up to 5 days in the case of 1989. And there are 
several changes in custom and law that would protect us from 
this scenario.
    First would be to establish a custom of the outgoing 
President to nominate the new Cabinet coming in on the morning 
of January 20th. The Senate could come in, confirm the Cabinet 
before noon of January 20th, and you would have people in place 
in case the worst happened, and those people would not have to 
attend the inaugural scenario.
    Second, the question of whether an Acting Secretary should 
be in the line of succession. I recommend that we take out that 
provision and just rely on those who were confirmed for the 
Cabinet post themselves.
    And, finally, there are significant problems with the 
continuity of Congress itself in the case of an inaugural 
attack. Congress may have its own difficulties reconstituting 
itself and to the extent that we can address them, we come up 
with a more reasonable congressional leader coming out of a 
newly re-established Congress that might eventually take over.
    [The prepared statement of Mr. Fortier appears as a 
submission for the record.]
    Chairman Lott. Thank you.
    Mr. Baker?

  STATEMENT OF M. MILLER BAKER, ESQ., MCDERMOTT WILL & EMERY, 
                        WASHINGTON, D.C.

    Mr. Baker. Mr. Chairmen, Ranking Members, and Members of 
the Committees, thank you for the invitation to be here today 
to discuss issues pertaining to Presidential succession.
    This issue, which has surfaced as a political and 
constitutional issue every several decades in American history, 
as Senator Lott noted, is of particular concern in the 
aftermath of September the 11th. It is very clear, for all the 
horror of that terrible day, it easily could have been even 
worse. It is apparent that had our enemies planned and executed 
a strike like September 11th for the principal purpose of 
decapitating the Government of the United States--and, in 
particular, the Presidency--that they very well might have 
succeeded.
    Chairman Lott. Mr. Baker, pull that microphone just a 
little bit closer, if you would, please.
    Mr. Baker. Certainly.
    Chairman Lott. Thank you.
    Mr. Baker. Any attempt by America's enemies to decapitate 
the U.S. Government unfortunately would be assisted, rather 
than thwarted, by the Presidential Succession Act of 1947. In 
my view, the 1947 Act is the single most poorly designed 
statute in the entire United States Code. I say this because 
the 1947 Act could deprive the Nation at the worst possible 
moment of what Alexander Hamilton in the Federalist No. 70 
called ``energy in the executive,'' with truly catastrophic 
consequences.
    My written statement describes in detail my criticisms of 
the 1947 Act. I will briefly summarize my views here.
    First, the 1947 Act gives the House Speaker and the 
President pro tem a special preference in the line of 
succession that enables them to bump or to displace a Cabinet 
officer serving as Acting President, even if the House Speaker 
doing the bumping was chosen only by a handful of 
Representatives in the aftermath of an attack that left most 
Members of the House dead.
    Even if the Speaker and the President pro tem are to remain 
in the line of succession--and I do not believe that they 
should--this special privilege of bumping by a new Speaker or a 
President pro tem by one that chose not to assume the Acting 
Presidency when it became available should be eliminated from 
the law.
    Second, the 1947 Act requires that a statutory successor 
resign his or her post as a condition of assuming the Acting 
Presidency even if the period of serving in this capacity is 
only for a few hours. This requirement could easily induce 
hesitation, especially if the fate of the President and the 
Vice President was unknown. This inducement to hesitation 
should be removed from the law. The law should induce action, 
not inaction. We need energy in the executive.
    Third, the 1947 Act does not allow a more senior Cabinet 
successor that was temporarily unable to act to assume the 
Acting Presidency from a more junior Cabinet officer that 
assumed the Acting Presidency. This induces hesitation because 
a lower-ranking Cabinet officer may be fearful of being charged 
with usurpation. For example, on September the 11th, when Colin 
Powell was out of the country, if the President, Vice 
President, Speaker, and President pro tem had been killed or 
were missing in attacks on the White House and the Capitol 
building, then-Treasury Secretary Paul O'Neill would have had 
to have made an immediate decision about whether Colin Powell 
was unable to discharge Presidential duties because of his 
absence from the country. The military may have been on the 
phone requesting authority to shoot down airliners. In the 
meantime, the Treasury Secretary is trying to decide whether or 
not he has authority to become Acting President. In the 
meantime, the decision has to be made.
    Under section 19, had O'Neill assumed Presidential duties, 
Powell would not have been able to displace O'Neill upon his 
return to Washington, which might have resulted in claims that 
O'Neill had wrongfully usurped the Presidency and in litigation 
over whether Powell, in fact, had been unable to discharge 
Presidential duties at the time of O'Neill's assumption of the 
Acting Presidency. The very fact that O'Neill might be exposed 
to charges of usurpation might cause him to hesitate before 
acting. A Cabinet officer in O'Neill's position on September 
the 11th would probably remember the ridicule that Alexander 
Haig suffered in 1981 from declaring that he was in charge 
pending the Vice President's return to Washington and doubtless 
would like to avoid a similar fate.
    Fourth, I recommend that the Congress remove the Speaker, 
the President pro tem, and all the Cabinet officers from the 
line of succession save the Secretary of State, the Secretary 
of the Treasury, the Secretary of Defense, the Attorney 
General, and the Secretary of Homeland Security. As has been 
noted before, placing the congressional leaders in the line of 
succession allows for the possibility of undoing the results of 
the last Presidential election. In addition, does anyone 
seriously believe, with all due respect to the incumbents of 
these offices, that the Secretary of Agriculture or the 
Secretary of Veterans Affairs should be catapulted into the 
Presidency, especially in the heat of a supreme crisis that 
could compare to December 7, 1941, and November 22, 1963, 
rolled into one?
    Fifth, Congress should create special successor officers 
comprised of State Governors and others that the President 
would appoint by and with the advice and consent of the Senate 
or, as Professor Amar has suggested, possibly with the House 
involved as well.
    Sixth, I believe Congress should submit a constitutional 
amendment to the States for ratification to cure the various 
deficiencies in the Presidential succession mechanism that 
cannot be corrected by statute and to validate other provisions 
in the succession law that may be unconstitutional.
    Since it is clear that a constitutional amendment is 
necessary to ensure the continuity of Congress, the same 
amendment should also address issues of Presidential 
succession. By way of example of an issue that probably needs 
to be addressed by this amendment, it is unclear under existing 
law whether when the Acting President should nominate a Vice 
President under the 25th Amendment, when the new Vice President 
is confirmed by Congress, does the new Vice President then bump 
the Acting President who made the nomination of the Vice 
President under the 25th Amendment? That needs to be clarified 
by existing law, and that can probably only be clarified by a 
constitutional amendment.
    Thank you very much.
    [The prepared statement of Mr. Baker appears as a 
submission for the record.]
    Chairman Lott. Thank you.
    Mr. Wasserman?

 STATEMENT OF HOWARD M. WASSERMAN, ASSISTANT PROFESSOR OF LAW, 
FLORIDA INTERNATIONAL UNIVERSITY COLLEGE OF LAW, MIAMI, FLORIDA

    Mr. Wasserman. Thank you. Mr. Chairman, Ranking Members, 
members of the Committee, my name is Howard Wasserman. I am 
Assistant Professor of Law at Florida International University 
College of Law.
    My testimony this morning draws on a couple of articles 
that I have written on this subject. I ask unanimous consent 
that they be included in the record.
    Chairman Lott. Without objection, they will be included in 
the record at this point.
    Mr. Wasserman. The consensus from the members of the 
Committee and the panelists that we have heard so far this 
morning seems to agree on two points: section 19 has serious, 
multiple flaws and has been flawed from the beginning, and that 
the events of September 11, 2001, drew those flaws into very 
specific relief. And I want to focus on a couple of areas from 
my submitted testimony as to those flaws.
    First, I agree that Cabinet officers are and should be the 
primary and preferred statutory successors as a matter of 
partisan continuity, as a matter of democratic legitimacy, and 
as a matter of separation of powers. I also agree that we need 
to extend the line of succession by expanding the Cabinet, 
particularly by creating a single position--Assistant Vice 
President, First Secretary, Successor Secretary--whose sole job 
would be to sit as first in line of succession and to remain 
outside of Washington.
    I believe, however, that the Speaker of the House and the 
President pro tempore of the Senate can and should remain in 
the line of succession as eligible successors, but at the end 
of the line, for this reason: September 11th raises the 
possibility of the worst-case scenario of the death or 
disability of the President, Vice President, and everybody we 
can imagine putting in the Cabinet, including a First Secretary 
or a panel of First Secretaries.
    Now, our discussion of Presidential succession this morning 
is occurring in the context of a broader conversation about 
continuity in the Federal Government as a whole, including what 
steps can be taken to ensure that there always is a functioning 
Congress. If there is a functioning Congress, whether because 
Congress survived the terrorist attack intact or because 
Congress has somehow been reconstituted, under Article I the 
first and necessary step in each House will be to pick a 
Speaker and a President pro tem, respectively. Those two 
offices always will be filled, and if they always are filled 
and if those officers remain in the line of succession, then we 
have someplace for the executive power to devolve in that 
worst-case scenario. And I would suggest, in fact, that keeping 
them in the line is necessary because in their absence in the 
worst-case scenario, there is no one under the Constitution or 
statute who would be able to assume the Executive power short 
of holding a new election.
    Second, the other major change that needs to be made to 
section 19, in addition to reordering the line of succession, 
is to provide for special expedited elections whenever section 
19 has been triggered by a permanent double vacancy. Now, the 
original 1792 statute provided for expedited elections. That 
provision has not been included in either of the two subsequent 
enactments.
    Now, I agree that what we could call indirect or what 
Professor Amar has called ``apostolic democratic legitimacy'' 
attaches to an Acting President who had been a member of the 
Cabinet, who had been the hand-picked policy surrogate of the 
populist President. But I would suggest that that indirect 
democratic legitimate legitimacy only lasts for a short period 
of time. It lasts long enough to restore order, to calm the 
public, and to begin the recovery process. It does not for 3 
years and 4 months, which is how long an Acting President, 
whether it had been Speaker Hastert, Secretary Powell, 
Secretary O'Neill, would have held the executive power had the 
tragedy of September 11th included the deaths of the President 
and Vice President.
    This special election reasonably can occur within 
approximately 6 months. That is enough time to allow for 
national mourning, to allow the restoration of some public 
stability, and to allow the States to organize 51 simultaneous 
popular elections. And the election would bestow direct popular 
legitimacy on the occupant of the White House via deliberative 
selection by the national electoral constituency. Finally, and 
most importantly, that special election enables the Nation 
truly to move forward in the longer term behind a nationally 
popularly chosen President and Vice President.
    I thank the Committee for the opportunity to address this 
joint hearing, and I wish this body every success in drawing 
the most workable and most structurally consistent Presidential 
succession process.
    Thank you.
    [The prepared statement of Mr. Wasserman appears as a 
submission for the record.]
    Chairman Lott. Thank you, Professor Wasserman.
    Before we begin our questions, Senator Feingold has 
returned. If you would like to make a statement at this time, 
we would be glad to hear from you.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you very much, Mr. Chairman, and 
Chairman Cornyn as well, for holding this important hearing.
    The topic of Presidential succession has occupied the 
Congress periodically since our Nation's founding. Usually a 
revival in interest in the topic occurs because of some event 
that leads us to dust off the statute and the Constitution and 
contemplate, ``What if?'' That happened when Andrew Johnson 
succeeded to the Presidency upon the assassination of Abraham 
Lincoln and then was impeached by the House of Representatives.
    It happened again when Harry Truman became President after 
the death of Franklin Delano Roosevelt. He viewed the statutory 
solution reached in 1886 as unsatisfactory and convinced 
Congress to pass a new succession statute.
    The assassination of President Kennedy led to the adoption 
of the 25th Amendment as the country contemplated how a Vice 
President who becomes President should be replaced and what 
should happen if the President become disabled.
    Now, as the witnesses have already indicated, of course, 
September 11th has revived interest in Presidential succession. 
The possibility of a terrorist attack that takes the life of 
both the President and the Vice President--[microphone out]--
contemplate. But we have a duty to at least examine the 
question of whether the Constitution and the U.S. Code are 
adequate to preserve the Union and provide the country with the 
best possible leadership in such a crisis.
    The issues raised by this topic are certainly interesting 
for anyone interested in our system of Government and our 
Constitution, and I have already enjoyed hearing from our 
witnesses about them. Should leaders of the legislative branch 
be in the line of succession? If so, how? And which leaders? 
Should the succession be different in the case of death as 
opposed to disability of the President, Vice President, and 
others in the line of succession? And if so, how should we 
provide for a person higher up the chain to move into the 
office when they are able to do so?
    These are all questions worth exploring. I do not believe, 
however, and I know the Chairmen do not believe that we should 
obsess about them. Our most dedicated efforts should be devoted 
to preventing the next terrorist attack and making sure our 
first responders are prepared to deal with it if it happen. 
This is not to say that this hearing should not have been held, 
but only to caution that the time and resources of this 
Congress and this Government are finite, and we must not be 
distracted from the task at hand by too much attention to what 
will most likely be only theoretical questions. But I do think 
this is extremely interesting for any of us that have spent 
time in our lives looking at Government, and I thank again 
Chairman Lott and Chairman Cornyn for the opportunity to speak, 
and I look forward to the further testimony of our witnesses.
    Thank you, Mr. Chairman.
    Chairman Lott. Thank you, Senator Feingold, for your 
interest in this issue and other related issues and your desire 
to see that we consider reforms in a variety of areas to try to 
make the Congress and the Government more efficient, and we 
appreciate your leadership.
    Let me go back then and get into some questions. Since you 
have testified first, we will come back to you, Professor Amar. 
Why did Truman more or less insist that leaders of Congress be 
included in the line of succession? If you look back at the 
history of that, that had been debated. Madison, as you all 
referred to, did not think leaders of Congress should be 
included, and then I guess there was another action taken in 
1886 and then finally in 1946 or 1947 when the last legislation 
was passed. But the history seems to indicate that Truman 
really was advocating that Members of Congress be included. Was 
this just a way of currying favor? Or was there some basis for 
it? Because it does not make sense to me.
    Mr. Amar. President Truman was a great man. He was not 
burdened with an extensive legal education. He actually had 
gone to law school but--and he did not present himself as a 
constitutional expert. He came from this body, and that was his 
biography, and I think he had real skepticism about the idea of 
someone unelected assuming the position. He had a certain 
phrase about people in the State Department, actually, that 
appears in McCullough's biography: ``the striped pants boys.'' 
So he had a certain skepticism about people who had never run 
for anything in their life.
    His proposal actually was not quite the same one that 
Congress adopted in 1947. For example, he wanted there to be a 
special election in the event of a successor Presidency that 
the bill that Congress passed did not include that provision, 
and he signed it anyway. So the stakes were lower, of course, 
if it is just a brief period.
    I think that the 25th Amendment addresses some--that model 
addresses some of President Truman's concerns by creating a 
sort of special legitimacy through a special confirmation 
process. And if we created a new Cabinet position at the top 
whose only purpose was really to be next in line, it could even 
be someone who had been President in the past or a former 
office holder the country had a great degree of confidence in. 
Then if candidates announced their prospective nominees to the 
American people before the November election, there would be a 
kind of national endorsement of that next-in-line position, 
which I think would satisfy Truman himself.
    Truman himself, of course, no one quite directly voted for 
him as Vice President, but when they voted for President 
Roosevelt, they voted for him as well. And so, too, I think an 
idea might be, well, if you vote for the candidate, you are 
voting for his Vice President, and also the third-in- line 
person that he has designated, and that would create a little 
bit more electoral responsibility.
    A final point is he is, of course, thinking about all of 
this before there has been a President Ford, before there has 
been a Vice President Rockefeller under the 25th Amendment 
process, which is sort of a different one than the one he is 
imagining.
    Chairman Lott. Frankly, I am surprised that at least a 
couple of you, maybe three of you, have advocated an Assistant 
Vice President. I know some people who have in the past 
questioned the value of the current Vice Presidency, although I 
think over the years that position has grown in responsibility 
and visibility, too. But I don't know. An Assistant Vice 
President just seems like we are adding even more--I do not 
know--encumbrances in a way. I mean, why would you want to go 
off on a wing that way when you have got an order of succession 
that you could go with? So I would be interested if any of you 
want to defend that a little bit.
    And the second thing is, though--because we are beginning 
to run out of time, and I will yield to the others for 
questions--can we do what we need to do in this area just with 
a statute? Or do you think we need a constitutional amendment?
    Mr. Amar. I think for congressional continuity, there may 
be constitutional amendment needs, but for this I think a 
statute could be pretty cleanly adopted. You do not have to go 
for the First Secretary idea. I think the biggest thing that 
all of us have suggested is to seriously rethink the 
legislative leaders at the top of the succession list if that 
does not work in a variety of ways, constitutional and policy.
    The reason for the new office, there are about three or 
four thoughts: It enables you to have someone who is out of 
Washington, D.C., because he does not have a regular day job, 
which ordinarily you might think, well, why create another 
make-work job? But if you are concerned about these absolute 
worst-case, what-if scenarios, the fact that he or she is out 
of the line of fire is an affirmative advantage.
    Chairman Lott. I wonder if it isn't a simpler solution just 
to say that one of Cabinet Secretaries--frankly, maybe a lot of 
the Cabinet Secretaries--could be out of this city. I never 
have quite understood why the Secretary of Agriculture 
shouldn't be in St. Louis or Kansas City or whoever wants it.
    Mr. Amar. You could. A second thought is that the person 
who might be even the best Secretary of State might not 
necessarily be the best person in this very unusual double-
death, double-disability situation. Maybe you want to just 
pick--I am a baseball purist. I do not much like the DH. But 
you might want to, you know, pick someone--maybe they are not a 
great fielder, but they are good at one very discrete function. 
They are great hitters. So one function, someone who in an 
absolute crisis would be the person that the American people 
have the most sense of comfort with, maybe even, again, someone 
who has held the position in the past.
    Chairman Lott. OK. Mr. Baker, I think I see you squirming 
like you would like to get into this discussion. Do you want to 
respond briefly to any of those questions I propounded? Then I 
will yield to Senator Cornyn.
    Mr. Baker. Thank you, Senator. I would say that a statute 
could solve most of these problems, but not all of them. And 
the one example I gave in my testimony was this uncertainty 
under the 15th Amendment. We have an Acting President, let's 
say a Cabinet officer or a Speaker who is serving as Acting 
President. One of their first duties under the 25th Amendment 
is to nominate a Vice President.
    Now, under the 25th Amendment, a Vice President becomes 
President if there is no President. And when we have an Acting 
President, we do not have a President. We have an Acting 
President. That is a distinction with a difference. There are 
different views on this, but I think it is a close call. And 
certainly it is rife with uncertainty. So I think there are 
some issues that need to be addressed by an amendment.
    In terms of having First Assistant Vice Presidents outside 
of Washington, one way to deal with this might be without 
establishing a formal office--but it would probably take an 
amendment to do this--is to allow the President to nominate, 
have the Senate confirm former prominent office holders that we 
would all have confidence in their ability to perform this 
function. Former President Bush, for example, could serve in 
the line of succession. One might imagine a Democratic 
President nominating former Vice President Gore or former Vice 
President Mondale. They would not have to receive any pay per 
se. They would not have to have an office. But in order to do 
that constitutionally, I think that it would be probably 
necessary, if you are not going to create an office, to have a 
constitutional amendment to validate that process.
    But there are ways of doing it, of creating successors 
outside of the Cabinet who are not going to hold an office per 
se. Of course, holding an office per se is, I think, actually a 
good idea, but you don't necessarily have to do that.
    In sum, most of the problems can be addressed by amendments 
to the statute, but I think there are a few issues that have to 
be addressed by a constitutional amendment.
    Chairman Lott. Senator Cornyn?
    Senator Cornyn. Thank you very much, Chairman Lott.
    Gentlemen, we hear whenever constitutional amendments are 
proposed or even discussed in the Constitution Subcommittee, 
for example, or on the Judiciary Committee, about the 
reluctance that most people feel when it comes to amending the 
Constitution, although we have done it 27 times. And hopefully 
when it is necessary to do so, we will not show any hesitancy 
at discharging the duty that we have assumed as a Member of 
Congress when it comes to recommending those amendments that 
are necessary.
    But besides the constitutional issues that have been raised 
about Members of Congress serving in the line of succession, I 
wonder if you might have some comments, and I will start with 
Dr. Fortier--am I pronouncing that correctly?--first.
    But, for example, I am aware of the problems that occurred 
during the impeachment trial of President Andrew Johnson when 
the President pro tem, anticipating his Senate colleagues would 
vote to remove Johnson and install him in the White House, 
actually announced Cabinet appointments that he would make were 
he made President, thus, in essence, building a constituency, I 
guess, for that choice.
    I am also aware of problems that occurred during the Vice 
Presidential confirmation proceedings of Gerald Ford when some 
tried to delay confirmation so that House Speaker Carl Albert 
would become President in the event Congress forced President 
Nixon to resign from office.
    So do you see, in addition to constitutional issues, 
prudential concerns that would call for a constitutional 
amendment? Or do you think a statute would solve this? Please 
address that.
    Mr. Fortier. I think most of the problems can be dealt with 
by statute. I agree with Professor Amar on the continuity of 
Congress issue, which we were pleased that you held a hearing 
on last week, that involves more of a constitutional solution. 
Most can be dealt with by statute.
    If we were redrafting the 25th Amendment, if we were at the 
stage where we had not put that in place, we might do it 
differently. The initial draft of the 25th Amendment which came 
before the Senate Judiciary Committee, while President Johnson 
was President, without a Vice President, took Congress out of 
the line of succession and made it clear that the Cabinet would 
step in for an incapacitated President in the same way that the 
Vice President is empowered to do so in the current Act. That 
was ultimately taken out because of some concerns of offending 
the Speaker at the time, John McCormack, and once it was 
enacted and ratified, it was done without that.
    So at that stage in time, I think we could clarify that and 
would go with the original version. But there are enough things 
that we can do in law to even specify in a little bit more 
detail what the procedure would be for a Cabinet member taking 
over in an incapacitation situation.
    You also mentioned the case of impeachment. I think it is 
worthwhile looking at each scenario that Congress is in the 
line of succession, and the impeachment and removal scenario is 
one where Congress has a real conflict of interest because it 
not only has to choose to remove the President, but it would 
put one of its own in place, and theoretically a party switch. 
You mentioned the two cases where we came very close to that.
    Senator Cornyn. One other question I had was about other 
reforms over and above those that you have discussed in your 
prepared statements, each one of you here. I wonder if, as long 
as we are looking at trying to address these issues, whether we 
should look at these as well.
    For example, I understand that the 25th Amendment addresses 
uncertainties in Presidential disability by allowing the Vice 
President and other officers to certify that the President is 
disabled. But the 25th Amendment does not address uncertainties 
in Vice Presidential disability. What happens if both the 
President and the Vice President are disabled? Do we need a 
statute to provide some objective standard, if that is 
possible, for determining a Vice Presidential disability? Or 
can we assume that if both the Vice President and the President 
are not well enough to assert their claims to the Presidency, 
the office will just automatically devolve on someone else 
according to the statute?
    I wonder if we could perhaps--Professor Wasserman, do you 
have any thoughts in that regard?
    Mr. Wasserman. My initial thought is that we at some level 
need some objective standards as to both the President 
controlled by--the 25th Amendment does not establish the 
standards for President--for determining the Presidential--when 
the President is disabled. But as to both, if both offices--or 
if there is a disability in both offices, then by the terms of 
section 19, it would just devolve. It would just devolved down. 
Again, the reason for the import of moving Cabinet officers up 
to the top to keep all that movement, because the disability 
could be temporary, to keep any movement within the executive 
branch and not bringing Members of Congress into the mix.
    Senator Cornyn. Mr. Chairman, I have a lot of other areas 
of interest, as I know all of us do, and I know we will be able 
to submit any questions we have in writing as well as follow 
up. But at this time I would yield.
    Thank you very much.
    Chairman Lott. Thank you, Senator Cornyn.
    I believe--is it ``For-teer'' or ``For-ti-ay''?
    Mr. Fortier. Well, you have raised a family dispute, but I 
say ``For-ti-ay.''
    [Laughter.]
    Chairman Lott. If it is in Louisiana and the Mississippi 
Gulf Coast, it is ``For-ti-ay.'' If it is here, I thought it 
was ``For-teer.''
    Mr. Fortier. Well, for some reason, my Northeast family has 
picked up your Mississippi tradition of ``For-ti-ay.''
    Chairman Lott. All right. Well--
    Mr. Amar. It is ``For-ti-air'' in Connecticut.
    [Laughter.]
    Chairman Lott. You say you think it is unconstitutional to 
have congressional leaders in the line of succession, I 
believe, in your testimony. Why? I believe that point was made 
by Senator Cornyn, but I want to get a clarification on that. 
And then, Senator Feingold, if you want to pick up with some 
questions after that?
    Mr. Fortier. I think there is a not universal but dominant 
position among constitutional scholars that it is for two 
reasons.
    One, the word ``officer'' that appears in Article II, 
Members of Congress are not officers of the United States, and 
if you look at the Framers, they intended there to be officers 
of the United States in the line.
    Second, the larger structural argument about separation of 
powers, that the Framers probably did not intend that.
    My recommendation actually is to think through the policy 
consequences of each of the scenarios rather than simply rely 
on that. And I have one exception to that, and that, I 
mentioned earlier, is the case where a President fails to 
qualify. You have, as I say, an election controversy which is 
not resolved before January 20th. In 1876, we went up to just a 
couple of days before the March inauguration without a 
President. Or you have some sort of catastrophic attack where 
both the President and Vice President are killed just before 
the inauguration.
    That scenario is guided by the 20th Amendment, and that 
language is different. It does not require an officer. It just 
refers to Congress being able to put the person that they 
choose in the line.
    So that narrow case, I think, is not unconstitutional, but 
I would recommend you look at the policy consequences of each 
of the various scenarios that Congress would come into the 
line.
    Chairman Lott. Senator Dodd has joined us. Senator Dodd, if 
you would like to make a statement at this time and then pick 
up on the questioning, we would be glad to hear from you.

STATEMENT OF HON. CHRISTOPHER J. DODD, A U.S. SENATOR FROM THE 
                      STATE OF CONNECTICUT

    Senator Dodd. Well, thank you very much, Mr. Chairmen, both 
of our Chairs, and I apologize for arriving a few minutes late 
here this morning, but let me thank our witnesses as well for 
their statements and their views on this important subject. And 
I thank both of our Chairs here and commend you both for 
calling this joint hearing. This is not a common experience, 
but I think it is a worthwhile one, when we are addressing an 
issue of this significance and importance. And, certainly, the 
events of 9/11 were a not so subtle reminder of the potential 
scenarios that could call into question, obviously, the 
procedures for establishing Presidential succession. And so I 
think this is a very timely and important subject matter. This 
is exactly the environment under which we ought to be 
considering those questions before a national catastrophe 
occurs and we are forced to act in haste or in response to a 
constitutional crisis.
    As I know you have all heard, and those who have followed 
this subject matter know, Article II, section 1, obviously, of 
the Constitution and subsequent amendments establishes the 
foundation for Presidential succession, makes clear that the 
Framers' preference that the Vice President should succeed to a 
vacancy in the Presidency. In their wisdom, the Framers left to 
Congress the question of how to settle a double vacancy, as 
occurs if the Presidency and the Vice Presidency are both left 
vacant. The Congress did not hesitate to fill this void and 
passed the first Presidential Succession Act in 1792, as you 
all know.
    It is noteworthy that in the 211-year history since that 
Act was adopted, Congress has only twice substantively or 
substantially revised it, which is rather unique considering 
how Congress usually likes to act in these matters, in both 
cases in response to circumstances related to the death of a 
sitting President. The history of the Succession Act and its 
progeny is a reflection, I think, of the 200-plus-year debate 
on the subject and the dilemma Congress faces when it considers 
a change only in response to a crisis. This history is also 
revealing in its consideration of the same issues that our 
witnesses have
    raised here today. And if we are to avoid the mistakes of 
the past, then we only need to look at our own history.
    The 1792 Act provided that in the case of a double vacancy, 
the order of succession would fall to the President pro tempore 
of the Senate and then the Speaker of the House. But the term 
of either of those legislative officers was to be temporary 
only since the Act provided for a special election to fill the 
Presidential vacancy, unless the vacancy occurred in the last 
full year of the term.
    The placement of the legislative officers in the line of 
succession was not universally supported, as historians will 
note, and its critics included such constitutional authorities 
as James Madison. Representative Jonathan Sturgis of 
Connecticut observed at the time that if the Speaker were in 
the line of succession, there would be--and I am quoting him--
``cabling and electioneering'' in the choice of Speaker. 
However, the Act remained substantially unchanged for nearly a 
hundred years.
    The Succession Act of 1886 followed the assassination of 
President James Garfield in 1881 and his incapacitation for a 
period of almost 80 days, and the untimely death of Vice 
President Thomas Andrews Hendricks in 1885, less than 9 months 
after his inauguration. Ironically, in both circumstances, both 
the office of the President pro tempore, then third in line to 
the Presidency, and the office of the Speaker, then fourth in 
line, were vacant at the time. Similarly, in both cases, there 
was a potential that least the position of the President pro 
tempore of the Senate would be filled by a member of the 
opposing party, thereby potentially leading to a switch in 
party should a double vacancy arise.
    To ensure the line of succession reduced the risk that such 
succession would result in a change in party in the White 
House, Congress passed the Succession Act of 1886, which 
eliminated the President pro tempore and the Speaker from the 
line of succession and provided for succession through Cabinet 
officers. The 1886 Act also eliminated the requirement for a 
special election that had governed succession for more than 60 
years.
    It was yet another death of a sitting President, that of 
Franklin Delano Roosevelt in April 1945, less than 3 months 
into his fourth term, and the ascendancy of the Presidency of 
Harry Truman that precipitated the latest revisions in 
Presidential succession, the Succession Act of 1947. President 
Truman found himself ill-prepared for the vacancy he filled, 
noting in his memoirs that, ``Under the present system, a Vice 
President cannot equip himself to become President merely by 
virtue of being second in rank. The voters should select him as 
a spare Chief Executive.''
    With the ensuing vacancy in the Vice Presidency, Truman was 
called upon to nominate his successor, a task he did not 
relish. In his special message to Congress on June 19, 1945, 
President Truman declared that he did not believe that in a 
democracy this power should rest with the Chief Executive. He 
recommended that Congress restore an elected officer to the 
line of succession, in this case the Speaker, whom Truman 
argued had a more recent mandate, having been elected every 2 
years, as opposed to 6 in the case of the President pro tempore 
of the Senate. Truman also recommended that the requirement for 
a special election be restored. In response, Congress enacted 
the Succession Act, which provides for the Presidential 
succession in the case of a double vacancy, but does not 
require that a special election be held.
    Many issues that faced the 2nd Congress in 1792 and the 
49th Congress in 1886 and the 80th Congress in 1947 are before 
us again here today. But today, while it is both fortunate and 
opportune that Congress is not faced with an immediate crisis, 
we are faced with one of even greater magnitude than the one 
imagined by previous Congresses: the potential elimination of 
the entire line of succession by one terrorist act.
    It is prudent that we act now to remove any constitutional 
questions or deficiencies in the Presidential succession 
procedures. The principles that must guide our deliberations, 
in my view, are the need to establish certainty, clarity, and 
the constitutionality of succession. The legitimacy of our 
democracy hangs obviously in the balance of what we do, and 
nowhere is the need for a nonpartisan/bipartisan approach more 
imperative than here.
    So, again, I look forward to the testimony that you have 
already given, and thank you again for being here.
    Let me ask all of you to sort of comment on the Truman 
commentary that he made in his speech to Congress in 1945. Did 
Harry Truman have it right in your views? Or did the Congress 
have it right based on the actions that the Congress took 
subsequent to his recommendations? Begin where you would like 
to begin. Who would like to start?
    Mr. Amar. Well, Chairman Lott asked about President Truman, 
and I did endorse, in response to Chairman Lott's question, the 
idea, which some other witnesses have, a special election might 
be a very good idea, and Truman proposed it, and Congress did 
not adopt that. And Truman might have been right on that.
    Let me mention one other decision that Congress made, a 
subsequent Congress. The Congress that proposed the 25th 
Amendment after the assassination of President Kennedy, in 
effect, repudiated the basic premise under which Truman 
operated. It basically said that a President, in effect, should 
pick his successor as long as that successor is validated by a 
special kind of democratic confirmation process. That is what 
the 25th Amendment does. It provides for an unelected 
President, someone who was not even on the Presidential ticket. 
It provides for President Gerald Ford. It provides for Vice 
President, could be President, Nelson Rockefeller. So that is a 
determination that Congress made after 1945, after 1947, that I 
think really undercuts in some ways Truman's vision. And if we 
wanted to rethink it now, we need to think about the 25th 
America, and as John has mentioned, the 20th Amendment as well, 
in terms of coming up with a statute that fits our modern 
constitutional sensibilities.
    Let me mention one other amendment, which is the lame-duck 
amendment, the 22nd Amendment, which enables Congress to meet 
before the Presidential inauguration and creates the 
possibility of the outgoing President, in effect, nominating 
the incoming President's Cabinet and having all of that 
confirmed before Inauguration Day as a matter of transition 
courtesy, which would solve another special window of 
vulnerability that John has mentioned that I have previously 
testified on in 1994.
    Senator Dodd. John?
    Mr. Fortier. I, too, share some concerns with the larger 
tack that President Truman took about putting Congress in the 
line of succession. His concern was that we should have an 
elected person in the line. My concerns are partly 
constitutional, but mostly I think that in many cases it is bad 
policy to have congressional leaders in the line.
    Senator Dodd. The Speaker does not have to be elected 
either.
    Mr. Fortier. The Speaker does not have to be elected. That 
is true, although we have never had that scenario. But there 
are difficult separation-of-powers questions which force the 
Speaker or the pro tem or whoever takes office to more or less 
resign their office, even in a temporary situation. That is 
just one example of why having Congress in the line does not 
lead to the sort of stability that we would hope for in a 
case--it could be a case of a horrific attack where there are 
numbers of Members, people in the line of succession, dead or 
incapacitated, and forcing multiple Presidents or the Speaker 
to take over for a short period of time, only to then be 
displaced, and potentially another Speaker then later to take 
the Presidency would lead to the sort of confusion that we do 
not want to see after an attack.
    Chairman Lott. Senator Dodd, could I ask a question there?
    Senator Dodd. Sure.
    Chairman Lott. I wondered why they switched from the 
President pro tem being third to fourth. Was it just purely 
simply the argument that President Truman made that he wanted 
the one most recently who had faced election? Was that the only 
justification for it? Was there more to it than that?
    Mr. Fortier. The original Act had the pro tem, as you 
mentioned, and that was in the 2nd Congress. And the relative 
importance of the two offices, I think, was not as established. 
In fact, the tradition that we now have of electing the 
longest-serving member of the majority party the pro tem was 
not in place then. Truman made the point that the Speaker of 
the House was mostly truly representative of the American 
people in that he had been or she had been elected to a 
district and then elected by a majority of the body.
    Chairman Lott. And the President pro tem position evolved 
into what it now is, which is that he is or she is the longest-
serving Member of the Senate of the majority party. Earlier it 
had been based on something other than just longevity, right?
    Mr. Amar. And the speaker ship also suggests an 
inattention, putting that first in line, to some of the 
practical considerations that my friend John has really 
highlighted. If we look at American history, we are struck by 
the fact that for much of it, there is no Speaker of the House 
because the House is not a continuing body the way this body 
is. And so in 1857 and then again in 1859, there is not a 
Speaker for 11 months out of the 24-month cycle. So that is 
really not what you want if you focus again on some of these 
practical considerations about continuity.
    So if you look at the founding vision of the executive 
branch, its energy, its unity, its vigor, its dispatch, but one 
of the central ideas is one person always there, 24/7/365, and 
that is why you have this constitutionally designated 
understudy of the Vice President, who immediately takes over. 
That is why you have a provision that if both of them are out 
of action, there needs to be someone at every instant.
    In England, there is an idea of complete continuity: ``The 
King is dead. Long live the King.'' At every instant, our 
system actually has to have a President, and we should be 
certain who that person is, and the Commander in Chief line of 
military chain of command needs to know exactly who the 
President is at every instant. And the Speaker of the House is 
actually quite unfortunately designed with that practical 
consideration in mind.
    Mr. Wasserman. There was also a partisan concern that 
President Truman expressed to Congress that he wanted party 
continuity, if at all possible, and having settled on 
legislative succession, he acted on the belief that the House 
was more likely to be in party agreement, therefore the Speaker 
more likely to be in party agreement, than was the Senate. That 
has not been--
    Chairman Lott. If you see this chart over here, that has 
not been the case.
    Mr. Wasserman. That has not proven to--
    Chairman Lott. The last 50 years.
    Mr. Wasserman. But that is a product of the post--that type 
of divided Government I think is more of a product of the post-
World War II society. I think prior to 1945, there was some 
validity or certainly more validity than there has been since 
the statute has been in place.
    Senator Dodd. Dr. Fortier, you raised the issue of certain 
Cabinet officers, junior status, may be ill-equipped to perform 
the functions of the Presidency. Isn't it, though, in a sense--
I mean, given the fact that you would expect the sort of 
rallying around, on the assumption most Presidents have some 
fairly competent people around a Cabinet table, the fact that 
the line of succession may fall to someone who would be of more 
junior status, maybe less experienced--just think of this 
Cabinet, for instance. You look at Donald Rumsfeld or Colin 
Powell. You move on down the line. You could choose someone who 
may not have the same experience. And yet having those 
individuals around would certainly minimize, wouldn't it--it is 
a question--the lack of experience that a more junior member of 
that Cabinet might have if, in fact, it fell to that 
individual?
    Mr. Fortier. My proposal is that the top five or top four--
and we are talking about putting the Homeland Security 
Secretary in there as five Cabinet members--are always going to 
be very substantial figures that have some connection to 
national security, if we are talking about a catastrophic 
attack, which by definition we are if we are going down the 
line to people with those sort of qualifications.
    My additional proposal is that we have some offices created 
around the country with some substantial figures in them--the 
eligible sitting Governors or former Presidents, former Vice 
Presidents, Cabinet members, Members of Congress--who are--if 
we can create a way for them to be tapped into the current 
administration as advisers and coordinators for their regions 
of homeland security, those people, I argue, may be more 
qualified or more--we would feel more comfortable with them 
assuming the Presidency in an extreme circumstance than a 
Cabinet member of other departments who were probably picked 
for more specific policy reasons--knowledge of the field of 
education, knowledge of the field of agriculture.
    We could, by having these additional offices, make it a 
point that the main reason for having these people is to assume 
the Presidency in the worst case, and we are being explicit 
that that is why they are chosen rather than as a secondary 
reason.
    Senator Dodd. Mr. Baker suggests, obviously, using 
Governors as part of this, but I gather the rest of you would 
have some hesitancy about having a Governor be very high up in 
a line of succession. But yet you just suggest somehow that 
having Governors of part of some elongated list would make some 
sense. Is that correct?
    Mr. Fortier. I think that we are not too far off, Mr. Baker 
and I. I think--
    Senator Dodd. Make a case for me in light of the California 
case here pending now.
    [Laughter.]
    Senator Dodd. Here is that large State and a California 
Governor I presume would be--that would be sort of a natural 
choice. In light of what is going on in California, would you 
really want this to--
    Mr. Baker. Senator, it depends upon the Governor. And that 
is why the President should have the discretion. I do not think 
the Congress should designate by State and say we will start 
off with California, New York, and Texas in that order. I think 
these kinds of questions are best left to the President's 
discretion and his judgment who is among the pool of Governors 
of his party who is best suited to serve him. So if the 
President were allowed to nominate a sitting Governor and have 
that person confirmed by the Senate to be in this contingent 
role, I think that would provide a successor outside of 
Washington.
    Senator Dodd. It would add a whole new dimension to the 
nomination process here, wouldn't it?
    Mr. Baker. It is always fun, Senator.
    Chairman Lott. Senator DeWine, thank you for being here for 
the entire hearing, and we would be glad to hear your 
questions.
    Senator DeWine. Chairman, thank you very much. Let me just 
thank our panelists. I think you have some absolutely excellent 
suggestions. There is only one suggestion, I think, that is a 
little troubling to me, and that is the idea of the special 
election. Harry Truman is one of my favorite Presidents, but I 
think it is just a bad idea, and let me tell you why.
    I think the last thing in a time of crisis that we need is 
uncertainty, and what we do is certainty. And the idea on 
September 11th that, if something had happened to President 
Bush, that we would have faced with a new President the specter 
of a special election in, say, 6 months is to me frightening. 
What we would have needed at that time is certainty that that 
man or woman who was the new President would have been able to 
serve the full term. That person would have been the President 
of the United States, and everybody in the world would have 
known it. And the idea that we would have faced a special 
election in 6 months I think to me is chilling. And so I think 
it is a horrible idea. Just the day and age we live in today I 
think it is just not a good idea. I do not think it was a good 
idea in 1945. I think Harry Truman did real well from 1945 to 
1948, and I think history shows that. So just my comment.
    Thank you, Mr. Chairman.
    Chairman Lott. Senator Cornyn?
    Senator Cornyn. Senator DeWine, I share your concerns about 
an election. As a matter of fact, last week, talking about the 
continuity of Congress, we have some competing proposals--one 
as a statutory fix, the other would be a constitutional 
amendment. And I guess perhaps again for the reason I stated 
earlier, because of the oft-stated concern about constitutional 
amendments and the difficulty in Article V in actually getting 
a constitutional amendment passed and ratified, the statutory 
fixes were proposed, including expedited elections.
    But one of the concerns that I would have about a quick 
election is, number one, the disenfranchisement of military 
voters, for example, that is a concern, not to mention in the 
wake of a 9/11 or worse the kind of chaos that would reign 
while we were trying to conduct an election process.
    So while obviously elections are important, ultimately 
there would be an election, but at least in the interim, I 
think stability and the need to provide some calm and clarity 
lest we get into more litigation or uncertainty is, I think, an 
initial process whereby it would devolve to another officer, as 
we have discussed earlier, it is far preferable to even an 
expedited election under those circumstances. But I would be 
glad to--Professor Amar, do you have any thoughts in that 
regard?
    Mr. Amar. In an earlier, pre-9/11 article, I did suggest 
that if the statute were revised, I added just in the paragraph 
that we should really think about providing for a special 
election 8 months later. I was not thinking about 9/11 in 1996, 
and my main suggestion was to cure the unconstitutionality by 
pulling the legislative leaders out of the line of succession, 
and not just the unconstitutionality but the impracticality in 
a variety of policy settings where this might occur. The 
statute just does not quite work as a practical matter.
    There is a tradeoff. To the extent that you get someone who 
is very highly validated by the American people as, say, the 
Vice President himself has never been, even in 1972, a 
provision for special election when Presidential power merely 
was transferred from President to Vice President, from Franklin 
Roosevelt to Harry Truman, partly under the idea perhaps that 
the American people already did vote for this person as their 
spare, as their next in line.
    Now, if you were to create a new office and President as a 
matter of custom or to name that person--to tell the American 
people before the election whom they were going to name, 
whether it was whom they were going to name as their Secretary 
of State, who is first in line, or whom they are going to name 
as their First Secretary, then, again, the election itself 
might have validated that person to serve out the President's 
term, which, of course, is the 25th Amendment model, too. You 
vote for Nixon, and he had a 4- year term, and if he cannot 
serve it out, it will be Agnew, whom you voted for; and if not 
Agnew, Ford, whom he has designated and who has been confirmed 
by a special process; and if not Ford, then Rockefeller. And 
so, actually, that 25th Amendment model, which I suggested as a 
possible template in the event that these things become--the 
disability occurs simultaneously rather than sequentially, that 
is not a special election model.
    The special election model might be more suitable if you 
are going to very far down the succession list. Then it is a 
little harder for the American--and if it is 3 years and 8 
months or 3 years and 9 months, very early in a Presidential 
term, very low down on the succession list, then there is the 
anxiety. And I do not think we would want to have it 2 months 
later, 3 months later, maybe 8 months or 9 months. And then the 
question is: Is it worth the candle--if the disability, double 
disability occurred very early in a Presidential term, say a 
month in or at inauguration, it might be very different than if 
it occurs 3 years in or even 2 years in.
    One final thought, since you talked about the military and 
people voting and voting in a crisis. Here is an amazing fact 
about our history, let's say, compared to the mother country, 
England. They do not have fixed and regular elections in their 
tradition. Parliament promised, try septennial elections--I 
mean triennial elections in the 1700s and then changed it. But 
during World War II, there was no election held in England 
between 1935 and 1945. Churchill gives up on Halloween 1944 and 
tells the House of Commons, ``No one under 30''--the generation 
that is actually making the supreme sacrifice. ``No one under 
30 has ever voted in a general election or a bye election; 
whereas, we held regular elections on time, even during the 
Great Depression and World War II, because President Lincoln 
held an election, one that he actually thought he was going to 
lose for a long time, but he held it fair and square on time 
with votes coming, the decisive votes, from the field, 
actually.
    So we have been able to run elections, although not special 
ones, even during moments of our greatest crises--the Civil 
War, the Great Depression, World War II--and, actually other 
countries have not always done it, even great democracies like 
Great Britain.
    Senator Cornyn. Professor Amar, one last follow-up. You 
noted in your opening comments that you testified before the 
Subcommittee on the Constitution in 1994 on this very subject. 
Is that correct?
    Mr. Amar. On a very closely related subject.
    Senator Cornyn. I do not recall what the context was.
    Mr. Amar. That was about special windows of vulnerability 
right around election time and inauguration time. If one of the 
candidates is knocked out the week before the Presidential 
election, we are in serious trouble. If the person who actually 
won the seeming vote is knocked out prior to the meeting of the 
Electoral College, there are some real areas of difficulty. It 
is all cited in the notes to my testimony. I have asked, 
actually, that that be added to the record. That was Senator 
Simon chairing that Subcommittee back on Groundhog Day 1994.
    Senator Cornyn. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Lott. Thank you again, Senator Cornyn, for your 
leadership, Senator Dodd, for coming, Senator DeWine, and the 
panel, thank you very much. We may have another hearing on this 
subject later on, but I hope we can find a way to actually act 
and get some results.
    In the meantime, I will be talking to Speaker Hastert and 
President pro tem Ted Stevens about how we get this 
accomplished.
    [Laughter.]
    Chairman Lott. The hearing is adjourned.
    [Whereupon, at 11:02 a.m., the Committee was adjourned.]
    [Submissions for the record follow.]

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