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?

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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.