> Rep. Christopher Cox (R-Cal.), together with a bipartisan group of > co-sponsors including Reps. Martin Frost and Sheila Jackson-Lee (Democrats > of Texas), introduced on June 4 a bill (H.R. 2319) to amend the > Presidential Succession Act of 1947 to: > > 1. Add the Secretary of Homeland Security to the cabinet officers in line > of succession, just below the Attorney General; > > 2. Eliminate the 1947 Act's provision for "bumping" a cabinet officer > from being Acting President if a Speaker of the House or President Pro > Tempore of the Senate fails to initially qualify but later does so. The > bill would clarify that the "person[s] holding the office of" Speaker or > President Pro Tem "at the time [a vacancy] occurs" have a one-time shot at > succession, failing which succession passes irreversibly (except in case > of a temporary Presidential or Vice-Presidential disability) to the > cabinet officers; > > 3. Provide that cabinet officers do not resign their cabinet offices if > acting as President during a temporary disability of the President or > Vice-President, and; > > 4. Clarify (though the 1947 Act already seems clear to me) that only > cabinet officers holding office by virtue of Senate confirmation are > eligible to act as President. > > All of these changes strike me as very salutary (though I personally would > prefer to place the Secretary of Homeland Security ABOVE the Attorney > General, given the current occupants of those offices!). > Akhil and Vik Amar's superb and definitive article, "Is the Presidential Succession Law Constitutional?", 48 Stan. L. Rev. 113 (1995), argued in favor of changes 2 and 3.
> The proposed bill does NOT, however, respond to their 1995 arguments, > which I think are conclusively persuasive, that it violates the text and > structure of the Constitution (and is also extremely unwise and > inappropriate on various pragmatic and policy grounds) to include the > Speaker and the President Pro Tem in the line of presidential succession, > primarily on grounds that members of Congress are not "Officers of the > United States" under the Constitution and therefore are not contemplated > as "Officers" under the Presidential Succession Clause, Art. II, sec. 1, > cl. 6. > [I have written to the Amars to alert them to this (perhaps they already know about it) and to encourage them to organize an appeal to Congress on the issue.] > The proposed bill also makes no provision for a special presidential > election in the case of an Acting President following an irrevocable > double vacancy. The Amars advocated such a provision in 1995. I am > neutral on that issue. (Such a special election, if held, should be for a > full four-year term in my view -- otherwise, it hardly seems worth the > trouble -- and if any resulting non-synchrony with congressional elections > is deemed problematic, though constitutional in my view, then I would > favor a constitutional amendment to frame a broader solution, such as by > extending the special four-year term up to two additional years to restore > synchrony with congressional elections.) > > Bryan Wildenthal > Thomas Jefferson School of Law >
