The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In light of recent events, I'd like to flag an Op-Ed I wrote in November, 2019 with Professor Seth Barrett Tillman. We explained why the Presidential Succession Act is constitutional, and that Nancy Pelsoi can become President. I know people do not like our theory about the Constitution's "office"- and "officer"-language. But under an alternate theory advanced by Professors Akhil and Vikram Amar, the Presidential Succession Act is unconstitutional. If the Amars are right, we may be headed to a true crisis, where multiple people could lay claim to the Presidency.
Here is an excerpt:
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 to the White House a second time.
We wrote a much longer discussion of this topic that we will publish in due course.