Do Professors Akhil and Vikram Amar Still Think the Presidential Succession Act is Unconstitutional?

I hope the Amars can answer a simple question. Who is in line for the Presidency after Vice President Pence: Speaker Pelosi or Secretary of State Mike Pompeo?

|The Volokh Conspiracy |

In an influential 1995 article, Professors Akhil and Vikram Amar argued that the 1947 Presidential Succession Act was unconstitutional. This law places the Speaker of the House next in line immediately after the Vice President. The Amars contended that this statute was unconstitutional. Their analysis began with the text of the Succession Clause. It provides: 

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and 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, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

If the Speaker is an "Officer," for purposes of the Succession Clause, then there is no problem. The Constitution expressly empowers Congress to place "Officers" in the line of succession. If the Speaker is not an "Officer" for purposes of the Succession Clause, then the Presidential Succession Act is unconstitutional. 

But the Amars contended that the Speaker is not an "Officer" for purposes of the Succession Clause. The Amars wrote that the word "Officer," as used in "the Succession Clause[,] is merely shorthand for any of the[] . . . longer formulations" of the Constitution's "office"- and "officer"-language, such as "officers of the United States" and "office . . . under the United States." The Amars explained that "[a]s a textual matter," the varied references to officers of the United States and office under the United States "seemingly describe[] the same stations." The Amars did entertain the possibility that the Framers drew a "civil/military distinction" among different types of officers. But they posited that "the modifying terms 'of,' 'under,' and 'under the Authority of' are essentially synonymous." In short, the Amars concluded that the Constitution's divergent "office"-language creates a "global officer/legislator distinction." The "global officer" extends only to positions in the Executive and Judicial Branches. 

By contrast, elected Representatives and Senators reside in the Legislative Branch. Specifically, the Amars explained, "federal legislators are neither 'Officers under the United States,' nor (to the extent that there is any difference) 'Officers of the United States.'" Accordingly, the Amars reasoned, "[l]egislators are not 'Officers' under the Succession Clause." Finally, the Amars stated that the word "officer," standing alone and unmodified in the Succession Clause, amounts to mere shorthand for "officer of the United States" and "office . . . under the United States."

Ultimately, under the Amars' theory, the Speaker of the House—qua legislator—is not an "Officer" and thus cannot stand in line of presidential succession. To the extent that the Speaker is an "Officer," the Amars argued that he is an officer of the legislature or an officer of the House. As a result, the Speaker is neither an "officer of the United States," nor is he an "Officer" as that word is used in the Succession Clause. According to the Amars, these phrases are coextensive. 

Akhil Amar restated this position nearly two decades later in his magisterial tome, America's Unwritten Constitution: "A member of the Congress, such as the House speaker, is simply not an eligible 'Officer' within the meaning of the [S]uccession [C]lause."

In 2004, Akhil Amar testified before Congress about the constitutionality of the Presidential Succession Act. During this hearing, he took a less categorical position. Amar stated that "in very, very highly unusual situations" legislative succession may be permissible. During such a dire time where all cabinet officials are "gone . . . only a real constitutional zealot, maybe without good judgment, would say you can't have congressional leaders in that circumstance because the Constitution really isn't a suicide pact." Presidential Succession Act: Hearing Before the Subcomm. on the Const. of the H. Comm. on the Judiciary, 108th Cong. 52 (2004).

Under their view, if the presidency and vice presidency become vacant—a so-called "double vacancy"—we would face a constitutional crisis. The Speaker of the House would claim the Presidency by virtue of the Presidential Succession Act. But succession by the Speaker would be unconstitutional because she is not an "Officer." Thus, the Secretary of State—the next-in-line non-legislative officer—would also be likely to claim, and with some legitimacy, the presidency. This theory, if correct, risks throwing the United States and the entire free world into a state of chaos. Bush v. Gore would seem tame by comparison.

As I type, the President is in the hospital. The Vice President has been in close proximity to the President. The Speaker of the House was not in close proximity to the President. Soon, our Republic may be thrown into a state of chaos. And the public is relying on the Amars' 1995 article. 

The New York Times quoted Jack Goldsmith, who seemed to endorse the Amars' position. And Professor John Yoo has favorably cited the Amars. He suggested that Secretary of State Mike Pompeo, and not Speaker Nancy Pelosi, is in line for the presidency after Vice President Pence. He wrote:

But Yale law professor Akhil Amar persuasively argued in 1995 (at the prospect of Speaker Newt Gingrich becoming president should Congress impeach Bill Clinton) that this provision is unconstitutional. The Constitution generally—but not always—uses "officers" to mean members of the executive branch. Further, the Incompatibility Clause of Article I provides that "no person holding any office under the United States, shall be a member of either house during his continuance in office." That implies that neither Mrs. Pelosi nor Mr. Grassley could become acting president without resigning from Congress, which would remove them from the statutory line of succession. The cleanest reading of the law, then, is that if Messrs. Trump and Pence were both unable to serve as president, Mr. Pompeo would become acting president.

In November 2019, Seth Barrett Tillman and I explained our disagreement with the Amars in The Atlantic. (We wrote a much more detailed article on this topic that will be published in due course). Tillman has also unearthed an article from 1792 that casts doubt on a critical piece of evidence the Amars relied upon. 

I hope the Amars can answer a simple question. Who is in line for the Presidency after Vice Pence: Speaker Pelosi or Secretary of State Mike Pompeo? In our view, Speaker Pelosi would become President.

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  1. I would hope that in the unlikely event that it gets down to Pelosi that we can hang up the bitter partisanship for at least a few weeks and not get mired in banana republic like politics of who is our “real” leader. But that probably won’t happen and the last thing we need to a splintered federal government right before an election.

    1. For once, I agree with Jimmy.

      We have a statute in place since 1947, and everyone more or less assumes it would be followed.

      The last thing we need is some nitpicking about what “officer” means throwing the country into chaos.

      Professors of Constitutional law need to keep their egos in check, and understand that their academic games can have serious real-world consequences.

      1. I disagree completely. Yes, we have had a statute in place since 1947. That does not make that statute constitutional. Its constitutionality has not been litigated because there has not been occasion to litigate it.

        It’s also pretty easy to see a conservative majority taking a basically textualist approach, adding a little bit of separation of powers reasoning, and coming to the conclusion that the statute is unconstitutional. They won’t even have to deal with stare decisis concerns as, again, it hasn’t been litigated.

        1. That would all be well and good if the litigation came at a time when the issue wasn’t on the front burner, or, rather, covering the whole cooktop.

          But that’s when it will come up. At which point the notion that you’re going to stop the world while the courts decide a murky issue, all about what “Officer” means, seems ridiculous, not to say dangerous, to me.

          My point about there being an actual statute dating back to 1947 is that letting the Speaker take over is not some ad hoc panicked partisan solution. The office, unlike Secretary of State, is specifically mentioned in the Constitution.

          In addition, the 1792 Succession Act specified the President Pro Tem of the Senate and the Speaker as the next in line after the VP, so the notion that a member of Congress could succeed in this way has been accepted from the beginning.

          1. It is terrible to change the rules after the fact, so your boy, or girl, can win. It should be Pelosi for no other reason than this. And yes, she has to resign from Congress first.

            The time to fix this is before the fact. “No cause to litigate this” is a BS argument at this point.

  2. Different question: Why would Congress want to put the Speaker of the House and the President pro tem next in line? That doesn’t even make sense, for reasons ranging from the possibility that they might belong to a different party to the fact that their day jobs won’t put them in day-to-day contact with the kinds of things a president would need to know about in case of an emergency.

    1. Well, remember that — initially — the VeeP was who came in 2nd in the POTUS race. They didn’t anticipate parties.

      1. The current Presidential Succession Act dates from 1947, 143 years after the adoption of the 12th amendment, so I don’t think that works.

    2. Why would Congress want to put the Speaker of the House and the President pro tem next in line?

      I know, it’s just unfathomable.

      Still, if the Constitution established “the Governors of the Several States” as the body entitled to set out the order of succession, hands up who thinks the Speaker of the House would have got the nod, ahead of, oh say, a Governor ?

    3. “Different question: Why would Congress want to put the Speaker of the House and the President pro tem next in line?”

      because those people are elected to the house and the senate and the members are the president’s cabinet are not elected.

      i’m not saying i agree with this approach but that’s one factor.

      1. Nancy Pelosi is elected by 5 Democrats and a donkey in downtown San Francisco. I’m not sure why that would make her more democratically elected than a senate-confirmed Secretary of State.

        1. Well, she’s elected to Congress by SF voters, but elected Speaker by a vote of the entire House, which means in practice by her caucus, so it’s a little better than that.

          That said, I agree it probably would be wiser to have the Secretary of State be third in line, but I also think that the way to change it is to change the law, not start a courtroom battle in the middle of a national crisis.

          1. If, in the fullness of time, we were to get round to adjusting the law, I would favor the President specifying the order of succession (after the VP) by Executive Order. Perhaps Congress in passing the enabling legislation might like to restrict the class of Officer who might be specified – eg only ones who have been Senate confirmed perhaps.

            Since it’s the President who got elected, it seems reasonable to allow him to specify who is to stand in for him, or replace him, within Congressionally approved limits.

        2. No donkey. They’ve eaten the donkey.

        3. The least democratically elected person is the Vice-President. As things are done today, literally chosen by one person. If the Vice-Presidential election were separate from the presidential election, it would make more sense for that person to be next in line. At least if “democratically elected” is your yardstick, rather than what the constitution actually says.

    4. The Presidential Succession Act of 1947 restored the Speaker and President pro tem to the list on the urging of Harry Truman, who argued that it was better that the powers of the Presidency be wielded by someone who was elected to their office rather than appointed. Yes, it is in tension with the separation of powers and partisanship, which is why the answer flips back and forth about once a century.
      For more than you want to know on this topic see chapter 6 in this book.

  3. I think the Amar’s have the better of the argument. This sentence makes it pretty clear legislators are not officers: “no person holding any office under the United States, shall be a member of either house during his continuance in office.”

    1. Go to the back of the class. Yo have not read Tillman and Blackman’s piece attempting to explan the various formulations of Officer mentioned in the Constitution.

      https://www.theatlantic.com/ideas/archive/2019/11/2020-election-could-pit-pelosi-against-trump/602308/

      “officers of the United States” refers to appointed officers in the executive and judicial branches.

      “office under the United States” refers to appointed offices in any of the three branches (there are a couple of appointed officers of the legislative branch mentioned in the constitution)

      “office” or “officer” on its own, unqualified by “of the United States” or “under the United States” includes anyone holding an Office, which includes elected people as well as appointed ones.

      Hence “no person holding any office under the United States, shall be a member of either house during his continuance in office” does indeed make it clear that legislators do not hold “an office under the United States” but that s not the language in the Succession Clause.

      There the term used is just “Officer” which can include elected folk like Congresscritturs.

      1. I don’t necessarily buy it. Even if Blackman’s analysis is correct, SCOTUS Justices take a variety of approaches to their jurisprudence. One of those is the basic notion of separation of powers, which the conservative Justices have relied on heavily in its jurisprudence over the past 30+ years. This seems highly relevant in this case.

        1. Historical practice also matter. There was an act passed in 1792 covering presidential elections and succession if both the president and vice president were incapacitated.

          The succession list in the 1792 act: the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives.

          Many of the members of Congress, both Representatives and Senators at the time had served in the constitutional convention.

          1. And many of them disagreed about very basic constitutional questions, even right after the convention. Historical practice matters a bit, but is hardly determinative. It’s the main problem with Profs. Blackman and Tillman’s usual approach to these questions. That and their historical analysis can be pretty shoddy. In my humble opinion.

    2. In addition, the minutes of the debate of the House of Representatives, linked in the 1792 reference above, show that the most extensive arguments were by Mr. (William Branch) Giles, who contended that appointing the Speaker as President presents a host of problems, and that he preferred the Secretary of State to avoid those difficulties. The discourse is lengthy, and worth a read in full. However, a brief excerpt of the minutes, providing summary of his position, is as follows:

      “None of these inconsistencies or absurdities attend the office of Secretary of State. The necessary relation and intimate connection between that office and the office of President of the United States, seem to render it the office most proper to furnish the person for the purposes required by this act.”

      And Mr. Giles took pains to emphasize that he was not making the argument because of the individual who held to office of Secretary of State at the time. The very next sentence of the minutes states: “He regretted the necessity of mentioning this office, because of the person who accidentally fills it for the present.”

      This reference is directly contrary to what Mr. Blackman puts forth in his final sentence of this present article, to whit that Ms. Pelosi, as Speaker of the House, would be next in line.

      Perhaps I simply missed it, but what part of this reference, discovered by Tillman, was Blackman attempting to cite in support of his contention that the Speaker is next in the line of succession?

      1. Bear in mind a couple of things:
        1. The linked-to reporting was of a speech in favor of an amendment that the House proposed but the Senate rejected. In the subsequent staredown the House blinked, and the Act that passed had only the President pro tem and the Speaker in the succession.
        2. The Act has had major rework twice since, so if you want to appeal to congressional policy debates you should be looking at 1947, not 1792.

        1. If we’re attempting to interpret a basic organizational provision in the Constitution from an originalist perspective, the relevant date is 1792, not 1947. And don’t forget that there is soon to be another devoted originalist on the Court.

          1. “If we’re attempting”, but we aren’t. The speech Rusticus quoted was about preferred policy not constitutionality.

          2. I agree with you, that the 1792 data is relevant, but the thing that’s relevant to constitutional interpretation is not the arguments, however passionate, of a single representative during the House debates, but the act that actually passed.

        2. Did Giles, or anyone, even argue that the Constitution prohibited members of Congress from succeeding to the Presidency?

      2. No, your reference to Mr. Giles speech in the debates is not directly contrary to what Mr. Blackman puts forth.

        Why not, because clearly Mr. Giles lost that debate and his view is not what was enacted in the 1792 succession act.

        1792: An Act relative to the Election of a President and Vice President of the United States, and declaring the Officer who shall act as President in case of Vacancies in the offices both of President and Vice President

        Sec. 9. And be it further enacted, That in case of removal, death, resignation or inability both of the President and Vice President of the United States, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives, for the time being shall act as President of the United States until the disability be removed or a President shall be elected.

  4. Suppose ACB is not yet confirmed when Pelosi becomes President. Can she withdraw the nomination and put forward her own?

    Suppose Pelosi is President only for a week or two, then Trump recovers, resumes office, and withdraws Pelosi’s nominations and renominates ACB. Wouldn’t that be fun!

    Suppose ACB is confirmed by the full Senate, but Pelosi becomes President before Trump signs her commission. Could Pelosi somehow withdraw the nomination, cancel the Senate’s approval, and put forward a new nomination? I suppose this is similar to Marbury’s case, where lame duck Adams signed a bunch of commissions but they weren’t delivered and Jefferson withheld the; but IANAL! If the Democrats win the election, ACB loses, I suppose, but Marbury was not a Supreme Court appointee; does that matter? If the Democrats do not win the election, could Pelosi do anything to derail ACB after Senate approval?

    1. The answer, according to some of our esteemed fellow posters, is that the Democrats will win harder than Reagan in 84, and that Guam, PR, the Virgin Islands, DC, San Francisco, Alaska, Canada, and Haiti will gain statehood.

      After that, the Democrats will be able to do whatever they want.

    2. Suppose Pelosi becomes President, Trump Recovers, but Pelosi “says” he isn’t better, and Pelosi continues on as President.

      Suppose Pelosi fires all the current Cabinet Secretaries when she takes over as acting President, then uses the 25th Amendment to disqualify Trump

      1. This is one of the absurdities that could result from taking Blackman’s position.

      2. I’m not sure she’d be able to use the 25th Amendment, which provides in Section 4 :

        Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

        all of which rests on there being a Vice President. But if Nancy is Acting President that implies there isn’t a Vice President.

        Now, perhaps as Acting President she would have power under Section 2 of Article 25 to nominate a replacement Vice President, and if the Ds controlled both House and Senate, she could get a new VP in place. Say, Obama perhaps ?

        Who would then take over as Acting President from Nancy.

        Then they would deploy 25A Section 4. But to sustain the President’s remove on grounds of incapacity, they would need to get a two thirds vote in each Chamber. Which would mean that they could only freeze him out for a maximum of 21 days. Which would be enough to see the through to 20 January, assuming they could place Barry in as VP on 3 January.

        Maybe good enough to disrupt Trump’s last minute pardons ?

        But hard to see it stopping ACB. If she hasn’t been confirmed by 2 January, that means both Trump and Pence have stopped breathing. The 25th Amendement won’t have anything to do with it.

  5. The absolute worst time to resolve the question would be during the intensely partisan bickering arising during a national emergency when invoking the Presidential Succession Act might actually result the opposition party in the White House.

    If questions exist, Congress should correct any problems with a new Presidential Succession Act which would only have force of law in four (eight?) or more years — i.e., when Congress has no certainty of which Party will hold either the White House or Congress.

  6. So it depends on the meaning of the word “officer”? This should clarify:

    https://www.youtube.com/embed/GeRGTXZIJTI?start=112&end=122

  7. Secretary of State for President. Three separate co-equal branches of government; Executive, Legislative and Judicial.

    Besides, La Bella Lugosi is no spring chicken, her promotion would merely throw more fat-heads into the arc-light fire.

  8. AFAIK, the house can replace the speaker with a new speaker in an eyeblink. Wouldn’t that be fun if the speaker became acting president? The house could change presidents several times per day.

    They could even change the house rules allowing non-congress-members to serve as speaker. That would open the possibility to an person on planet Earth being named President if the house so votes. Just to be provocative, how about Vladimir Putin?

    From Wikipedia:
    Since 1839, the House has elected speakers by roll call vote. Traditionally, each party’s caucus or conference selects a candidate for the speakership from among its senior leaders prior to the roll call. Representatives are not restricted to voting for the candidate nominated by their party, but generally do, as the outcome of the election effectively determines which party has the majority and consequently will organize the House. As the Constitution does not explicitly state that the speaker must be an incumbent member of the House, it is permissible for representatives to vote for someone who is not a member of the House at the time, and non-members have received a few votes in various speaker elections over the past several years. Every person elected speaker has been a member.

    1. I don’t think that could happen. Once the current Speaker takes the oath to become President or Acting President she’s in. The House can’t, I think, remove her in favor of a new Speaker.

      1. The current statute requires the new acting President to resign their previous office, insulating them from changes to it, so this isn’t an issue. The 1792 law however didn’t have that provision, instead of resigning the President pro tem or the Speaker temporarily acquired the powers of the Presidency in addition to their day jobs and there was a concern that if they were replaced those powers would follow to the new officeholder.

  9. What an odd question to ask of the Amars. They wrote an article on it, then one of them testified before Congress–unless the author knows something we don’t, why would we assume that there is any uncertainty about their views on the question?

    1. Journalists writing about presidential succession right now are citing the Amars. Blackman wants a piece of that spotlight, as he often wants with every other contemporary issue. Since he is currently not part of the conversation, but the Amars are, he is trying to bait them into responding to this “question.” If they do respond, then Blackman gets to insert himself into a discussion that is currently trending, which means possibly having his name mentioned in articles addressing succession. If they don’t respond, then he can just write follow-up posts titled “Why Won’t The Amars Stand By Their Scholarship?”

      All of this reminds me of when I gave a public speech at CUNY Law and the students were really mean to me…..

      1. Plus, there was that op-ed.

      2. Blackman wants a piece of that spotlight, as he often wants with every other contemporary issue. Since he is currently not part of the conversation, but the Amars are, he is trying to bait them into responding to this “question.”

        To be fair to Blackman – not something that comes easily, as I, like you, do tend to view him as one of those annoying “Me-me- look-at-me” children – this business of who counts as an Officer for various purposes does seem to be one of his specialities, if only as understudy to Seth Barrett Tillman.

        He may be right, he may be wrong, but this is genuinely one of his babies. And since it has become topical, he’s entitled to post about it.

    2. Well, reading between the lines, I suspect that Blackman thinks their view may be malleable according who the Speaker is. So he’s positioning himself to shout “Hacks !” if they start walking back their 1995 position, now that Nancy is in the frame rather than Newt.

      1. Yes, the question is if they are partisans or will stick to their own testimony when parties change.

  10. Let’s ask a slightly different question.

    Let’s say the VP passes away. And the President is in poor health, but perfectly capable of the office. So, he nominates a series of candidates for VP. But the House is controlled by the opposite party, and the House denies all the candidates, in the hope the President passes away, and the House Speaker (and opposition party) can “Inherit” the presidency…

    And the House holds the VP slot open for a year or two.

    Legit?

    1. Sure.

      If you can hold a SCOTUS seat open hoping your side can fill it why not the VP slot?

      1. Yup, quite legit. Politics ain’t beanbag.

        And I’m sure that both parties in the current environment would do exactly this and count on no significant backlash from independents. Obviously the other side’s committed voters would be furious, but they’re not gonna vote for you anyway.

        I think the only political calculation which would counsel against doing this if if, say, the VP had been assassinated. Holding the slot open would look like trying to profit from an assassination, which wouldn’t be a good look.

        Similarly, if the current SCOTUS vacancy had been created by the assassination of a liberal Justice rather than from natural causes, I think the GOP would have concluded that they would be punished for trying to take an advantage from an assassination. Hence we would have heard Mitch sanctimonously intoning that it would be proper to leave the slot open until the voters had spoken.

        Trump might have been up for it, but once he recognised that Mitch wasn’t, he’d have been laying on the solemn statesmanlike grief for as long as he could manage. Though his aides would undoubtedly have confiscated his Twitter just to be on the safe side.

    2. To be clear, the Speaker doesn’t become President; she becomes ACTING President. The whole idea is a temporary, caretaker arrangement. (In fact, the first Presidential Succession Act of 1792 called for a special election to fill the Presidency.)

      A Speaker might not even want the job, She would have to retire from the House, and her seat might not even be waiting for her if she wanted it back. She would inherit the President’s Cabinet. Is she really going to fire them all and go through Senate confirmation for her own choices? Again, this is viewed as a temporary arrangement for extreme situations.

      So, while such a move might be “legit”, I doubt anyone would think it worthwhile. And I suspect the voters would punish such a move severely.

      1. A Speaker might not even want the job

        Interestingly the Presidential Succession Act 1947 seems to give both the Speaker and the President pro tempore a choice as to whether to take up the burden, because the language is :

        the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President

        conditions the “shall act as President” on the resignation of the Speaker. There is no suggestion that the resignation is obligatory.

        But when we get down to the Executive Officers, we go straight to “shall act as President.” No ifs, no buts, no maybes. And it then provides that the taking of the oath as President is held to constitute resignation from the prior appointed Office.

        Very similar, and yet different. Nancy gets a choice. Pompeo doesn’t. Though of course he can resign immediately if he doesn’t like the job.

      2. She would have to retire from the House, and her seat might not even be waiting for her if she wanted it back.

        She (like all members of Congress) is up for reelection in a month; she is guaranteed to win, and will thus gain her seat back on January 3.

  11. Suppose we have a highly divided country and the Legislature decided to impeach and remove both the President and Vice President on Trumped up charges of “abuse of power” making the Speaker of the House President.

    1. Who exactly would declare the charges “trumped up,” and the removal therefore invalid?

    2. If the Senate could muster the required two-thirds vote for removal, then it would stand to reason that the country was not that “highly divided” on the matter.

  12. “Who is in line for the Presidency after Vice President Pence: Speaker Pelosi or Secretary of State Mike Pompeo?”

    Putin?

  13. If the Amars are right, then, of course, the 2d Congress, which included many of the drafters of the original Constitution, passed an unconstitutional act. One chief piece of evidence cited is a letter from James Madison to Edmund Pendleton dated Feb. 21, 1792.

    The Bill concerning the election of a President & Vice President and the eventual successor to both, which has long been depending, has finally got thro’ the two Houses…. On another point the Bill certainly errs. It provides that in case of a double vacancy, the Executive powers shall devolve on the Presidt. pro. tem. of the Senate & he failing, on the Speaker of the House of Reps. The objections to this arrangement are various. 1. It may be questioned whether these are officers, in the constitutional sense. 2. If officers whether both could be introduced. 3. As they are created by the Constitution, they would probably have been there designated if contemplated for such a service, instead of being left to Legislative selection. 4. Either they will retain their legislative stations, and their incompatible functions will be blended; or the incompatibility will supersede those stations, & then those being the substratum of the adventitious functions, these must fail also. The Constitution says, Congs. may declare what officers &c. which seems to make it not an appointment or a translation; but an annexation of one office or trust to another office. The House of Reps. proposed to substitute the Secretary of State, but the Senate disagreed, & there being much delicacy in the matter it was not pressed by the former.

    The answer to Madison’s fourth objection is straightforward: the Speaker (or President pro Tem) would have to resign from Congress before serving as Acting President. This evidence is hardly conclusive. Firstly, of course, Madison’s opinion, though entitled to substantial weight, is not the final word on constitutional interpretation. Congress heard his objections and rejected them. Secondly, Madison is very brief here. He’s not writing a law review article or even a letter to the editor, but private correspondence not intended for public consumption. Thirdly, Madison uses equivocal phrases like “may be questioned” and “probably”, belying certitude in the matter. I

    In sum, while I think it is extremely unwise to put Congressional officers in the line of succession, I believe it perfectly constitutional.

  14. It is neither constitutional nor logical for any member of Congress to be in the presidential line of succession. The “Ineligibility Clause” prohibits such members from the simultaneous holding of an executive (or judicial) branch office. (The U.S. not a parliamentary form of government.)

    That means that to pass constitutional scrutiny, such a member would first have to retire from Congress. Once done, however, that person is a private citizen and is no longer an “Officer,” by any definition. The appointment of that now non-officer would run afoul of Article Two, S1.6 of the Constitution.

    I’m with Madison. The original error was made in 1792.

    1. Amar argues that an “officer” in the Constitution is an executive official OR a judicial one. So, per Amar, it would be perfectly constitutional, for example, to place the Chief Justice in the line of succession. This, rather obviously, would implicate the same separation of powers concerns.

      But, yes the legislative (or judicial) official would have to resign first before becoming Acting President, who would certainly be an “officer” at that point. Of course, no one is forced to accept the job. Imagine, for example, the President and VP both die with less than one month left in their terms. In such a situation, I suspect the Speaker and President Pro Tem would defer and just let the Secretary of State finish the term.

    2. Actually that error regarding holding two offices, to the extent it was an error, has been corrected. The 1947 act explicitly required the president of the Senate or the Speaker of the House to resign from their legislative positions before becoming acting President.

      The current act would require the same from the Speaker.

  15. I would suggest that the number of words in the US Constitution dealing with the three branches of government, and the necessity of separation of powers, would indicate designating legislators to be in the executive succession to be suspect. I would expect a constitutional succession to be entirely with the executive branch.

  16. It’ll go to whomever the Secret Service wishes to protect. As an agency of the Executive Branch, the succession would go de facto to the Cabinet, not any member of Legislative Branch, because that’s where the protection already exists and would continue.

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