The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Trump v. Anderson, Professor Akhil Reed Amar, and the Constitutionality of the Presidential Succession Act
Professor Amar's argument renders the presidential succession acts of 1792 and 1947 unconstitutional by barring putting the Speaker of the House of Representatives and the President Pro Temper of the Senate in the line of succession to the presidency
Professors Akhil Reed Amar and David Vikram Amar argue that President Donald Trump is covered by the phrase in the Fourteenth Amendment, Section 3, that disqualifies a person who holds "any office *** under the United States" from being eligible to be elected President, if he has engaged in an insurrection, after swearing an oath to support the Constitution. The Amar brother's position is that the presidency is an "office *** under the United States", and that Donald Trump is disqualified from being elected President in 2024 even though the entire Republican Party overwhelmingly wants Trump to be their nominee.
The Incompatibility Clause of Article I, Section 6 says that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." And, the Presidential Succession Clause of Article II, Section 1 says that in the event of a vacancy in both the presidency and the vice presidency "Congress may by Law [declare] what Officer [legislative or executive] shall then act as President." For most of American history, the Speaker of the House of Representatives and the President Pro Tempore of the Senate have been ahead of the Cabinet in the line of succession to the presidency. That arrangement is as American as apple pie.
Under Professor Amar's theory that the President holds an Office under the United States for the purposes of Section 3 of the Fourteenth Amendment, it is unconstitutional for Congress to put the Speaker of the House of Representatives or the President Pro Tempore of the Senate in the line of succession to the Presidency, as Congress has done since 1947, because doing so would violate the Incompatibility Clause. (A Member of either House would unconstitutionally get to hold, simultaneously, their congressional seat and an Office under the United States while they served as Acting President).
In fact, the Presidential Succession Act of 1792, which was passed by the Second Congress, which was full of framers of the Constitution, and which was signed into law by President George Washington put legislative officers in the line of succession to the presidency because the Founding Fathers did not believe that the Presidency was an Office under the United States. The Founding Fathers discussed and debated this very question, and James Madison lost while making the exact same argument that the Amar brothers make as to Section 3 of the Fourteenth Amendment that the Presidency is an Office under the United States.
The Amar brothers think that our current setup of having legislative officers in the line of succession to the presidency is unconstitutional as they argued in print in Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stanford Law Review 113 (1995-1996). I once agreed with the Amar brothers on this issue but have since changed my mind. I strongly doubt that the nine current justices of the Supreme Court realize that any ruling that Donald Trump is ineligible to be on the Colorado primary ballot will end up as a side-effect gutting the Presidential Succession law.
The Supreme Court in Trump v. Anderson should not hold that the Presidency is an office under the United States because, if it does so, the Presidential Succession Acts of both 1947, and of 1792, would be rendered unconstitutional, even though the Founding Fathers meant for legislative officers to be eligible to be put into the line of succession to the Presidency, and such legislative officers have been in the line of succession to the presidency for most of American history. The Amar brothers would repudiate 171 years of historical practice of legislative officers being in the line of succession to the presidency. It is far more democratic to put elected Speakers of the House of Representatives and Presidents Pro Tempore of the Senate in the line of succession to the Presidency than it is to put un-elected Cabinet Secretaries in the line of succession. The Amar brothers are just plain wrong in arguing that the President holds an "office *** under the United States" under Section Three of the Fourteenth Amendment.
They are also wrong in Trump v. Anderson in calling on the Supreme Court to let each of the fifty States have their own rule as to what constitutes an "insurrection". The whole point of the Fourteenth Amendment was to rein in State power and to impose some uniform national rules. This is especially needed with rules concerning eligibility to hold national offices. See U.S. Term Limits v. Thornton, 514 U.S. 779 (1995); Powell v. McCormack, 395 U.S. 486 (1969). Letting 1,000 flowers bloom on the fifty State Supreme Courts, as to presidential eligibility requirements, is more likely to produce a weed garden than it is the Rose Garden.
