My apologies for the inconsistent formatting of this posting. All of the following email is from me, even though parts of it appear to be comments added. (That resulted from my editing the email that I sent to the Amars.)
-----Original Message----- From: Bryan Wildenthal [mailto:[EMAIL PROTECTED] Sent: Friday, June 20, 2003 4:57 PM To: [EMAIL PROTECTED] Subject: Proposed Bill in Congress on Presidential Succession > 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 >
