Worrying About the Presidential Succession Law

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4 Responses

  1. Ken Rhodes says:

    I am bothered by an offhand, almost throwaway, line in this post. “Those that did not [accept the result] would either lack standing to challenge the succession law, or …etc”

    It bothers me because presidential succession legislation has a single purpose–to fill an elective office. If Congress established an election law that were unconstitutional, a citizen who should be eligible to vote in the election would (presumably) have standing to challenge the law. It is mind-boggling to me that my standing to challenge can be removed by making the law fill the office without an election.

  2. Jason Miller says:

    Very interesting topic.

  3. Brian Kalt says:


    I too am troubled at the way standing is restricted in cases like these, and what I perceive as the overuse of the political-question doctrine (which in this case would actually be the bigger barrier). Among my conclusions is that for the good of the country, the Court should be more comfortable getting involved in these cases.

    Say what you want about Bush v. Gore, but it is an indication to me that the Court might be more comfortable with that. But a case in which the country is riven in two might be different–if enough institutions and power centers in the federal government have already lined up behind one contender (and that process would be swift), I wouldn’t expect the Court to try to reverse the result.

  4. Dear Mr. Kalt,

    In a paper out for publication entitled “U.S. Presidential Succession,” (copy at http://www.nestvedllc.com/articles/index.html) there exists a definitive proof the Presidential Succession Act of 1947 (3 U.S.C.) is constitutional with regard to the inclusion of the Speaker of the House and President pro tempore of the Senate in the presidential succession list, as the statute contains the required statements to unambiguously exclude the Speaker and President pro temp from consideration as eligible successors. If the exclusion statements were not present, then the Presidential Succession Act would be unconstitutional as argued most recently by Akhil Reed Amar and Vikram David Amar, as well as by the Continuity of Government Commission (Second Report June 2009).

    Having said that, the Presidential Succession Act is actually unconstitutional because it includes an impeachment clause that can exclude potential Executive Branch Officers (e.g., Secretary of State…) from succession by merely being Impeached by the House of Representatives without the required conviction by the Senate. That is, if the House of Representatives could muster enough votes to Impeach each and every Executive Officer in the presidential succession list, there would be no eligible successor.

    It is correct, the inclusion of the members of Congress in the succession act (3 U.S.C.) does create the potential for a legal battle over the question of legitimate succession at a most inopportune time, which is precisely the reason the paper “U.S. Presidential Succession” was written. That is, the paper provides at least three definitive proofs that members of Congress are ineligible, and thus, any succession should begin with the Sec. of State, while definitively proving any House Impeachment without the required Senate conviction of an Executive Officer in the presidental succession list does not disqualify or eliminate said Executive Officer from succession. Noting, if the Senate does act with a conviction, then that officer is ineligible.

    Timothy D. Nestved