Line of Succession Teaching Moment

I saw this story this story about Defense Secretary Robert Gates being kept away from the Inauguration to preserve the line of succession in case of a “Mars Attacks” scenario. After seeing a couple of confused comments elsewhere on the internet, I thought I’d blog some basics about the line of succession.

The Constitution specifies only one member of the line of succession: the vice president. It empowers Congress to use ordinary legislation to provide a longer line of succession (“the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President”). Currently, the line of succession runs to the Speaker of the House, the President Pro Tem of the Senate, and then the Cabinet, in rough order of the establishment of their departments. Acting secretaries and people who aren’t eligible to be president are skipped over.

The inclusion of the Speaker and President Pro Tem is very likely unconstitutional. Because the line of succession is supposed to consist of “officers,” a designation that most people agree does not include members of Congress (who in fact are barred from being officers while in Congress), the line of succession should not include them. The statute in place between 1886 and 1947 included only the cabinet, and so avoided this issue.

Because the line of succession includes officials who are sometimes inclined to all be in the same place–at inaugurations, or at the State of the Union address, for instance–one person in the line is traditionally kept away from such gatherings. That is why Secretary Gates won’t be at the inauguration.

I saw some confused conspiracy theories online expressing suspicion about having the only Republican* in Obama’s cabinet in this role (one example: “I’m not ‘onboard’ with picking the only Republican, especially not given what this Republican junta has done.”). But Gates is a perfect choice. The conspiracy theory rests on the notion that the alternatives to Gates are Obama cabinet members like Hillary Clinton and Timothy Geithner. But until they are confirmed–and they won’t even be nominated until after President-Elect Obama takes over at noon–they are not in the line of succession. The Bush cabinet is. Condi Rice, Michael Mukasey, and all the rest will still hold their offices until their replacements come in (assuming that they don’t resign and let their deputies run things for a few days). As a result, Gates–who Obama is keeping on–is the perfect candidate. He might not be the conspiracy theorist’s favorite member of Obama’s cabinet, but he is the only one who has been confirmed already.

* It has been reported that Gates is not a registered Republican. And Ray LaHood, Obama’s nominee for Transportation, is a Republican.

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7 Responses

  1. Howard Wasserman says:

    And note that acting secretaries remain in the statutory line. Thus, if Rice resigns, her deputy becomes acting secretary of state and thus is next in line to act as president.

  2. Mike says:

    Howard,

    The laws detailing the succession line specify that acting secretaries cannot be included. This makes certain that in order to be in the line you must have passed a confirmation hearing.

  3. Howard Wasserman says:

    Mike:

    I don’t think that is correct. Section 19(e) only requires that a cabinet official in the line of succession have gone through Senate confirmation. The # 2 or # 3 person in, say the Department of State (who would become acting secretary if Rice resigned), typically do go through Senate confirmation for their deputy positions. The common understanding is that this makes them eligible to be in the line of statutory succession.

    See here for a good analysis:

    http://www.brookings.edu/articles/2003/fall_governance_fortier.aspx

    This was written in 2003, but the statute has not been amended?

  4. dearieme says:

    Does this mean that if the two unconstitutional people were bypassed, third in line will be Hellary? Oh dear.

  5. WL says:

    The West Wing story arc where Pres. Bartlet had to step aside temporarily dealt with the issue by having the Speaker of the House resign from Congress and simultaneously taking the oath of office for President. As the Speaker acknowledged, it would have been unconstitutional for him to work for 2 different branches at the same time.

    (The more interesting question that the show went on to ask was whether an Acting President, especially from a different party, has the power to appoint his own Cabinet if the elected President is only temporarily incapacitated.)

    (And in the final few episodes, the even more interesting question is what constitutionally happens if the VP-elect dies in the interim between election and inauguration.)

    Damn I miss that show…

  6. Howard Wasserman says:

    The constitutional objection (which I do not necessarily buy, but many have argued) to the Speaker is not cured by his resigning because it is not only one of Incompatibility. The issue is that the legislative position he holds prior to resigning and becoming acting president does not make him an officer of (or under) the United States, which refers to executive branch officials. On this reading, the Speaker is no more an officer, and thus no more eligible to act as president, than an ordinary citizen. And resigning the speakership and the House seat does not cure this, because when she resigns, she does indeed *become* an ordinary citizen.

  7. ParatrooperJJ says:

    Also acting Presidents would not be sworn in.