Monday, November 11, 2019

Congress Should Amend the Presidential Succession Act to Ensure Party Continuity

by Michael C. Dorf

On Thursday of last week, Jennifer Williams, an aide to Vice President Mike Pence, testified for the House impeachment inquiry. Her cooperation with the inquiry raises an intriguing possibility: What if Pence is implicated in the arms-for-fake-dirt Ukraine scandal? Should the House impeach Pence alongside of Trump? If doing so is justified by the evidence, then simultaneous impeachment and removal of Trump and Pence would make House Speaker Nancy Pelosi the acting President, pursuant to the Presidential Succession Act. That possibility, in turn, would certainly make Republican Senators who might otherwise be willing to vote to remove a President and Vice President of their own party unwilling to do so.

Or they might insist on removing the President and Vice President one at a time. If they removed Pence first, then, pursuant to Section 2 of the 25th Amendment, Trump could name a new Vice President; Trump's removal would then lead to the new Vice President's becoming President, whereupon that new President would name a new Vice President. That is the same sequence of events that led from the Nixon-Agnew administration to the Ford-Rockefeller administration. Although Ford and Rockefeller were both well qualified, it is easy to imagine Trump, in a fit of pique, naming as his successor someone almost as poorly suited to the job as himself, Rudy Giuliani, say, or Sean Hannity.

Alternatively, if the Senate were to remove Trump first, then Pence would name a new Vice President, who would become President upon Pence's removal, whereupon the successor would name a new Vice President. It seems less likely that Pence would choose new leaders purely out of spite, but there's still something very very troubling about the prospect of a President who was chosen by someone who was then removed for committing impeachable offenses. That was true of the procedure that gave us Ford, and it would be true in any version of the invocation of Section 2 of the 25th Amendment.

A perfect fix would amend the 25th Amendment. Amending the Constitution is difficult and time-consuming, however, so a shorter-term fix would involve amending the Presidential Succession Act.

To be sure, an amendment might not be necessary. Congress enacted the Presidential Succession Act pursuant to authority granted by Article II, Clause 6 of the Constitution. Yet that provision authorizes the designation of an "officer" as the acting President; in a 1995 Stanford Law Review essay, Profs Akhil Amar and Vikram Amar revived a position first espoused by James Madison in arguing that the Succession Act's designation of the Speaker and then the President Pro Tem of the Senate as next in line after the Vice President was invalid, because members of Congress are not "officers" within the meaning of the Constitution.

The point isn't merely formal. Given the role of Congress in impeachment, there's a conflict of interest built into putting the leaders of the House and Senate in the line of succession. (The President Pro Tem is not the Senate majority leader, to be sure, but there's still a conflict.) Moreover, even when  the Presidency and Vice Presidency become vacant simultaneously without an impeachment, there is a conflict of interest in having a member of Congress serve as acting President (which is what Article II provides) while also serving in Congress. Accordingly, one might hope that, as a matter of constitutional law, the Amars are right.

Yet perhaps the Amars are wrong. And even if they're right, it is not clear that anyone would have standing to challenge a presidential succession. Maybe the person next in line who is clearly an officer might?

That's the Secretary of State, here Mike Pompeo, who might also be implicated in the arms-for-fake-dirt Ukraine scandal! If Pompeo were removed along with Trump and Pence, that would mean that the next eligible plaintiff would be Treasury Secretary Steve Mnuchin, whose name has not (yet!) surfaced in connection with the scandal.

So let's imagine that Mnuchin would have standing to file a declaratory judgment action against Pelosi and Chuck Grassley (currently President pro tem of the Senate). There is a very good chance that the courts still would not adjudicate the matter, finding that it presents a nonjusticiable political question. Accordingly, notwithstanding the Amars' efforts, I don't think one could rely on their essay to reassure Republican senators that simultaneous removal of Trump and Pence would not result in Pelosi becoming acting President.

Some readers may be impatient with my assumption that there are any circumstances under which the current Senate would remove Trump, much less Pence, much much less the two of them simultaneously. Fair enough, but the current moment provides us with cause to consider the broader question.

Other scholars have noted various problems with the Presidential Succession Act. For example, in addition to the Amars' essay, there was an excellent paper by lawyers William F. Brown & Americo R. Cinquegrana in the 1987 Georgetown Law Journal (which is accessible on restricted sites but not, apparently, elsewhere on the Internet.) Here I've noted that in a hypothetical world in which the Senate might be inclined to remove both the President and the Vice President, the prospect of an acting President of the opposite party -- which would occur whenever the House and Presidency are controlled by different parties -- might deter removal.

Changing the President's party is a potential problem even outside the impeachment/removal context. Suppose that a hypothetical President and Vice President die at the same time (perhaps due to an accident). Replacing a Democratic administration with a Republican one or vice-versa simply because the White House and the House are in the hands of different parties would seem to undercut the voters' choice in the most recent presidential election. Removing the congressional officials from the line of succession and simply including Cabinet members would solve that problem, except in the rare case in which the top-ranking cabinet officer was from a different party than the president.

So how about it Congress? Here's a chance for a bipartisan good-government reform that doesn't clearly favor either party. Amend the Presidential Succession Act.

1 comment:

Joe said...

The "officer" point makes me wonder if the impeachment provision applies at all:

"Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States"

Does that mean the disqualification rule [which is not automatic and only was applied three times] does not apply to members of Congress? That is, a person (this happened) who was removed by impeachment could even with the disqualification be elected to Congress?

(Maybe this is covered in the articles -- I'll cheat and just flag it.)

There is a certain logic in someone chosen by the majority of the "people's house" to serve as the third in line. It can be argued that such a person has more legitimacy on some level than a Cabinet member confirmed by the Senate, which is not a democratically apportioned institution for one thing.

There are problems as has been discussed. It might be seen as best to have Congress pass a law to appoint someone else. The confirmation process can factor in the importance of the office in question.

Finally, the issue about overturning the past election. Yes. I see the concern but it has only so much force. The Constitution itself leaves open the chance that the people elected would be removed by impeachment, which only occurs by a supermajority vote. Then, there is the small chance of some 25th Amendment event (a non-voluntary removal real hard to come by) or something else like both being killed.

Removal by impeachment very well might justify because a temporary change of party control via a mechanism that after all was passed by normal legislative process. At the very least, just having a member of the Cabinet, who in some way is likely to be involved in the matter the President (or whoever Trump is) and Vice President is removed over, next in line itself is not free from issues.