Yes, the Presidential Succession Act is Constitutional.

In November, Seth Barrett Tillman and I wrote that Speaker Pelosi can succeed to the Presidency

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.

Comments

[Armchair Lawyer]

This seems a little silly.

We have evidence at what the founders intended here. Indeed, they put the Speaker and Senate Leader in the succession line in 1792...

[SMP0328]

The First Congress, not the Founding Fathers, passed the first succession act. James Madison pointed out that putting Congressional leaders in the line of succession was unconstitutional, but the First Congress was too busy hating Thomas Jefferson.

[Armchair Lawyer]

Uh huh...and who exactly signed that bill into law? If we're talking about founding fathers?

[Martinned]

The great jurist and drafter of the constitution George Washington? O, wait...

[Kirk 2]

Who determines that the Amars are "prominent"? The NYT can find a law professor to opine for or against any legalism, and often does.

[Martinned]

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.

Not that nonsense again...

[Craig Johnston]

It seems to me that the potential for a crises in which both the Secretary of State and the Speaker claim to have succeeded to the Presidency exists until the crises occurs and SCOTUS issues an authoritative opinion.

[Martinned]

There's a reason why many other countries have an advisory opinion procedure at their constitutional court. Some questions are better answered by the Supreme Court before they become urgent...

[Lee Moore]

The problem with an advisory opinion is that the Court is not presented with two parties with competing interests who each desperately want to win. So there is a danger of one side - the pro forma opponent - going through the motions.

The question to be resolved may be framed in a way designed to get the answer that is wanted - especially if it's the government seeking an advisory opinion. In a real case, each side frames the questions that it thinks are important, and it frames them as it likes.

Or worse still, it could be like one of those consent decree stitch ups, where both parties are on the same side, and the consent decree is a legal trick to be used against an unrepresented party.

Then there's the dragging of the courts into political controversies, because it's convenient politically so to do. Suppose we had advisory opinions and in 2016 Mitch had applied to SCOTUS for an advisory opinion on whether ignoring the Garland nomination was within the Senate's constitutional powers. He'd have got a Yes and would have used that to claim legitimacy for his tactic. Then he could do it again this year for Barrett. And get another Yes. So all those liberal heads exploding at McConnell's hypocrisy would now be exploding at SCOTUS's hypocrisy too. Is this a wise course ?

[Martinned]

I think that that places more faith in the adversarial system than is warranted. Moreover, in the US there is enough difference of opinion within the Supreme Court that you'd always end up with the equivalent of adversarial argument within the justices' deliberation room. Having the lawyers argue their case simply saves the justices some effort.

And yes, you'd want to create some kind of threshold to make sure you don't get too many adversarial opinion requests. As for the risk of inserting the Court into politics, that's a laughable concern given the Court's track record over the last 200 years. If the Court can order desegregation of schools and the legalisation of abortion and same-sex marriage, they're already up to their eyeballs in politics. Having them say (correctly) that the Senate majority can vote or not vote on a nominee as they wish is hardly going to make that worse.

[John Hart Esq]

It’s funny, no one (left or right) argued against the Amar’s constitutional logic when the issue centered around Newt Gingrich potentially taking the helm. Another albeit predictable flip for the liberal party in the Trump era.

Individuals within the Legislative body clearly can not be officers of the US Gov’t since officers can be impeached and members of congress can not.