The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here is the introduction
Assume that President Donald Trump is impeached and removed from office. At that point, Mike Pence would become president. The position of vice president would remain vacant until Congress confirmed a replacement, nominated by the president.
This shift in positions could result in a very unlikely possibility: If, prior to the confirmation of a new vice president, President Pence were to become unable to discharge the office, then Nancy Pelosi, the speaker of the House, would assume the office of the president under the Presidential Succession Act of 1947.
Or would she? Two prominent constitutional-law professors contended in 1995 that the Succession Act now in force is unconstitutional. And a recent New York Times op-ed agreed: Legislators, such as the speaker of the House, cannot be elevated to the presidency, the thinking goes.
This theory, if correct, risks throwing the United States and the entire free world into a state of chaos. The speaker and the secretary of state (the next-in-line, nonlegislative officer) could both claim, with some legitimacy, to be president. Bush v. Gore would be tame by comparison.
A better reading of the Constitution, however, gives Congress the power to place Nancy Pelosi second in line for the presidency. But, as we'll get to below, that same reading has an unexpected implication: Contrary to common belief, after removing the president from office, the Senate cannot disqualify him from being elected back into the White House.
Our analysis starts with the succession clause in Article II of the Constitution. The Constitution specifies that the vice president serves when the presidency goes vacant. But what happens if both positions go vacant, a so-called double vacancy? The Constitution's succession clause states: "Congress may by Law … [declare] what Officer shall then act as President." And Congress has done just that: The Presidential Succession Act places the speaker of the House next in line after the vice president. If the speaker is an officer, then there is no problem, because the Constitution clearly states that Congress may place officers in the line of succession.
Our position also has implications for the Disqualification Clause and the Foreign Emoluments Clause:
This understanding of the Constitution's divergent language relating to office and officer has two important—and surprising—implications. First, if President Trump is removed from office, the disqualification clause allows the Senate to preclude him from "hold[ing] and enjoy[ing] any Office … under the United States." It is generally assumed that this provision means that the Senate can thus bar an ejected first-term president from being elected to a second term. Indeed, many "explainers" published on the impeachment process take this outcome for granted, without any skepticism, even in the absence of any on-point judicial authority. But, the phrase office under the United States (much like officer of the United States in the impeachment clause) prevents Trump only from being appointed to an office in any of the three branches. Senate disqualification would not prevent Trump from being elected to the House, the Senate, or even a second term as president. That outcome makes sense: Let the voters decide.
Second, the Constitution's foreign-emoluments clause applies only to a "person holding any Office … under" the United States. Again, this language prevents only appointed federal officers, not elected officials, from accepting foreign-state gifts and some forms of compensation from foreign states. As a constitutional matter, the president and members of Congress can accept foreign-state gifts. We have previously written that President George Washington received, accepted, and kept valuable gifts from the French government, and he did not seek congressional consent.
Recently, however, a federal court concluded that the president was subject to the foreign-emoluments clause. This ruling, which is on appeal, unintentionally casts doubt on the validity of the Presidential Succession Act. That decision rejected the careful textual distinctions the Framers drew: Much of the "officer" language in the different clauses distinguishes between appointed officers and elected officials in all three branches. Abandoning this textual dichotomy is a reading akin to that put forward by the Amars. The logical consequence of that position is that elected legislative-branch officials, such as the speaker, are not officers. Under this court's approach, the Presidential Succession Act, which places the speaker in the line of succession, would be unconstitutional.
That result is very dangerous. The Supreme Court, should it eventually consider the emoluments-clause cases, would be wise to reverse course, and recognize that the Constitution's text draws a distinction between appointed officers and elected officials in the federal government. Or, at least, the Court should decline to decide the question. Otherwise, the justices may very well usher in political and legal chaos should a double vacancy arise.
The process prescribed by the Constitution and the Presidential Succession Act is much simpler. If Trump and Pence are out of the picture, then Pelosi becomes president. Full stop. But the Senate, even if it removes and disqualifies Trump, could not prevent him from being elected to a second term as president. Moreover, even while he is president, Trump-affiliated commercial properties could continue catering to foreign governments without creating any constitutional problems.
We realize these results are counterintuitive by modern sentiments, and for some undesirable. Still, each of these outcomes is far better than the genuine constitutional calamity that might emerge if the courts abandon the Constitution's vital textual distinction between appointed officers and elected officials. We would much rather have one unpopular, term-limited president than two dueling senior federal officeholders laying claim to the presidency.
To clarify Clarence Thomas can preside at a presidential impeachment trial, Nancy Pelosi can become President, and Donald Trump can serve a second term. Got it?