[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
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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
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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
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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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