In last season's final episode of The West Wing, President Josiah Bartlet invokes the 25th Amendment and relinquishes power so that the country can be led through crisis -- terrorists have kidnapped Bartlet's daughter -- by someone with an objective grasp of the situation. As it happens, however, the office of vice president is temporarily vacant, the previous occupant having resigned because of a sex scandal two episodes prior. Under such circumstances, the Presidential Succession Act of 1947 dictates that the speaker of the House becomes the acting president, regardless of whether the two leaders are from the same party (on The West Wing they're not). The show's fifth season premieres tonight, and with the speaker of the House still occupying the Oval Office, the question of presidential succession will no doubt continue to loom large.
This kind of constitutional oddity makes for good drama -- The West Wing wasn't the only show to end its season last spring by invoking the 25th Amendment; FOX's 24, another political drama, closed with a similar ploy -- but questionable public policy. In the sort of crisis envisioned by The West Wing, or in the event that the president and vice president were simultaneously killed in a terrorist attack, the last thing the country would need is a dramatic change of direction at the top. Not only would a new president from the other party possibly lack the confidence of the public, the need for large-scale turnover in executive branch personnel could prove highly disruptive at a time when the country could least afford it. Keep in mind, too, that real presidents (even real Democrats) aren't always imbued with the high-minded spirit of the Bartlet administration -- which means that the fear of handing power to political enemies could prevent a president from stepping down, even when it's obviously in the best interests of the country.
And these are only the most obvious flaws with the current succession scheme.
At hearings recently held by a joint session of the Senate's Rules and Judiciary committees, many speakers expressed the view that the 1947 act is unconstitutional as well as unwise. The problem is that Article II, Section 1 of the Constitution instructs Congress to "declare which officer" should act as president -- and many scholars doubt that the House speaker counts as an "officer," seeing as other parts of the Constitution use the term to refer to officials appointed by the president. No one knows if the current law would pass constitutional muster in the eyes of the courts; we wouldn't find out until such a succession actually took place and was legally challenged. But the days immediately following a terrorist attack or other catastrophic event probably wouldn't be a good time for a lawsuit questioning the line of succession, which heightens the importance of avoiding any legally questionable rules.
Even more problematic is the fact that if the president, vice president and House speaker were all to be simultaneously killed or incapacitated, executive authority would then pass to the president pro tempore of the Senate. Whereas the speaker is the leader of the majority party in the House and, therefore, in some sense a representative of the will of the nation as a whole, the presidency of the Senate is a purely honorific office given to whichever member of the majority party has served longest. As a result, the president pro tempore is rather lacking in democratic legitimacy and not necessarily within the mainstream of his or her party, much less of nationwide opinion. The current occupant, Sen. Ted Stevens (R-Alaska), is not a terribly implausible candidate for the White House, but his predecessor, Sen. Strom Thurmond (R-S.C.), certainly was.
Reps. Brad Sherman (D-Calif.), Brian Baird (D-Wash.), John Conyers (D-Mich.) and Chaka Fattah (D-Penn.) recently introduced a bill that would alter the existing succession act so as to allow the president to designate either the House speaker or House minority leader as first in line behind the vice president -- and either the majority or minority leader of the Senate after that. The legislation would likely eliminate the prospect of the presidency switching parties, but it wouldn't hew any closer to the spirit of the original constitutional mandate than the current law. Indeed, the legal problems could be aggravated because the minority and majority leaderships are party rather than government posts.
A better solution would be to follow the recommendation of Sens. Trent Lott (R-Miss.), Christopher Dodd (D-Conn.), John Cornyn (R-Texas) and Russ Feingold (D-Wisc.), and their expert witnesses at the Sept. 16 hearings, who advise taking Congress out of the line of succession altogether. This would ensure that the successor to a dead or incapacitated president would be, if not a vice president, a cabinet official who could likely provide a high degree of policy continuity (a pragmatic benefit) and would be a direct appointee of the president (more in keeping with the spirit of the constitutional mandate).
Current law dictates that cabinet officers follow legislative leaders in the succession hierarchy based on the chronological order in which their departments were created, meaning that the secretary of state goes first, followed by the secretaries of the treasury and defense and so forth down to the secretary of homeland security. Legislation has already passed the House to bump the homeland-security head up to the spot between the attorney general and the secretary of the interior on the theory that the significance of Tom Ridge's job militates against placing it beneath lowly posts such as the secretary of veterans affairs.
Congress would do well to consider further revision of this ranking -- lining up the secretaries in the order their posts were created is a highly arbitrary way of making such an important decision. The secretary of the treasury, for example, is undoubtedly an important and high-profile member of any presidential administration. But assuming a succession crisis would likely arise from a war or a terrorist attack, the secretaries of defense and homeland security -- and possibly the attorney general -- are likely better suited to fill the presidency. The secretary of health and human services, meanwhile, oversees a far larger department in terms of budget, personnel and policy significance than the secretaries of agriculture, commerce and labor -- yet they come before the HHS chief in the line of succession.
Similarly, it's at least worth contemplating the possibility that some subcabinet officials should rank higher than the lesser cabinet officials. Deputy Secretary of Defense Paul Wolfowitz, for example, is doubtless better situated to implement a foreign-policy response to terrorism that would square with the spirit of the Bush administration than, say, Secretary of Education Rod Paige.
Congress should also take up other suggestions raised by witnesses at the recent hearings. One special concern is the fact that all of the officials currently on the succession list reside in the Washington area. This raises the possibility that they might all be simultaneously killed (or simply impossible to communicate with) in the event of a nuclear attack. John Fortier of the American Enterprise Institute suggested the appointment of four or five officers specially designated to coordinate homeland-security efforts on a regional basis, any of whom could ascend to the presidency in the event of catastrophe. These officials would be geographically dispersed and presumably up-to-date regarding the status of current threats.
Other alternatives would include allowing the president to place governors of his choosing into the order of succession (possibly with the advice and consent of the Senate), or to create assistant vice presidents who would live outside of Washington and receive regular briefings on foreign-policy and national-security issues. The first proposal, unfortunately, is constitutionally questionable and thus raises the possibility of unwanted litigation in a time of crisis -- though constitutional-law expert M. Miller Baker suggested at the Sept. 16 hearing that the president could use his authority to federalize state National Guards, thereby turning governors into "officers" of the national government under the theory that they are the commanders in chief of their respective states. The assistant-vice-president proposal seems legally sound, but there is no assurance that figures with the requisite stature and experience could be persuaded to take the job.
Figuring out the merits of these proposals will take time. (Schemes to confront other doomsday scenarios may also be in the works -- some observers have suggested, for instance, that replacing House members via special election, as the Constitution requires, would prove too time consuming in the event of an attack on the Capitol that left many members dead.) But almost everyone can agree that having legislative leaders in the chain of command is problematic. Which is why Congress should temporarily table discussion of the more controversial aspects of these proposals and act quickly to remove itself from the line of succession. Partisan wrangling and constitutional uncertainty in the midst of a national-security crisis ought to be avoided at all costs -- except on TV.
Matthew Yglesias is a Prospect writing fellow.