Most Republican gripes that an impeachment of President Donald Trump would “overturn” the 2016 election are laughable. The House of Representatives’ power to impeach is right there in the Constitution, and Republican members had no qualms about using that power against president Bill Clinton, whose offences were far less serious than those Trump has already copped to. But the gripes have merit when it comes to the matter of presidential succession.
Consider the following scenario, which would have seemed wildly implausible only a few months ago: Trump is forced from office over the Ukraine-Biden shakedown. Vice President Mike Pence takes over, and before he can name his own vice president, he is impeached and removed for his own role in the scandal. The nation is now led by … president Nancy Pelosi.
It’s true: Under a 1947 federal law, the Speaker of the House is second in line to the presidency, after the vice president, even if she or he is of a different party than the president. How can that be? Don’t the American people choose presidents largely because of their parties?
Yes, they do, which is why the prospect of Pelosi, the veteran San Francisco Democrat, sitting behind the Resolute Desk in the middle of a Republican administration should trouble anyone who values stability and democratic legitimacy. The scenario could well be enough to prevent Republican senators from voting to oust Trump, even if they are convinced that the case for his removal is strong. That case is strong, without question — and still it would be understandable for them to balk.
This is one of many compelling reasons the Speaker of the House, like any member of Congress, should be nowhere near the line of succession to the presidency. As Dwight Eisenhower said after he left office, “I believe that if the electorate says that such-and-such a party should have the White House for four years, it ought to have the White House for four years.”
The possibility is freighted with enough drama that it was the subject of an episode of The West Wing back in 2003. When president Jed Bartlet, a Democrat, steps aside temporarily to deal with a family crisis, the vice presidency happens to be vacant, so the job of acting president falls to the Speaker, a Republican. One of Bartlet’s Cabinet members raises the prospect that the Speaker could give one order and Bartlet could give another. “I won’t be giving any orders,” Bartlet says, prompting another Cabinet member to respond: “But, if you did, I think there are those in this room, myself included, who would wanna follow those orders. And now, we have two governments.”
Such a situation has been a distinct possibility at many points throughout American history. Since the nation’s founding, the vice presidency has been vacant for a total of roughly 37 years. In 1974, after president Richard Nixon resigned and was replaced by his vice president, Gerald Ford, the Democratic-controlled Congress took four months to confirm Ford’s own replacement. If anything had happened to Ford during that time, the Speaker, Carl Albert, D-Okla., would have assumed the leadership of a country that only two years earlier had delivered one of the biggest Republican landslides in history — Nixon had won 49 of 50 states and more than 60 percent of the popular vote.
(Yes, in 2016 the Democratic presidential nominee won nearly 3 million more votes nationwide than the Republican nominee, giving both parties an arguable claim to be Americans’ true choice. That’s a topic for another day.)
Presidential succession remains an issue in 2019 because more than two centuries ago, the Constitution’s framers didn’t want to deal with it. They designated the vice president as first in line to the presidency, then pushed all other decisions off to Congress, which spent more than 150 years going back and forth over who should be next on the list.
The original succession law, passed in 1792, designated only two people after the vice president: the president pro tempore of the Senate and the Speaker of the House. In case either took over, a special election would be held to choose a new president. Why those two officials, and not someone from the executive branch — say, a member of the president’s Cabinet? Because of raw politics: The secretary of state at the time was Thomas Jefferson, a prominent critic of the Washington administration, and the Federalists in charge of Congress weren’t about to hand him a potential pass to the White House.
This design had a fatal flaw, one that Americans today are watching play out in real time. In short, it’s a whopping conflict of interest for a lawmaker to be leading an impeachment inquiry that could result in her own ascension to the presidency. Consider what happened in 1868, when a Republican-led House of Representatives impeached president Andrew Johnson. In the Senate trial, one of Johnson’s most outspoken critics was Ben Wade, a Republican who also happened to be the president pro tempore. Wade voted to convict, along with 34 of his colleagues, one vote shy of the two-thirds majority necessary to remove Johnson from office. The vice presidency was vacant at the time, which meant Wade was effectively voting to make himself the president.
Whether or not Pelosi is actively thinking about her chances of ending up in the White House, the mere appearance of the conflict is bad on its own. That’s why Congress rightly changed the succession law in 1886, removing the Speaker and president pro tempore from the line and replacing them with seven Cabinet members, starting with the secretary of state. This arrangement lasted for 60 years until president Harry Truman pushed to restore the Speaker and president pro tempore — in the reverse order from 1792 — on the grounds that they are elected directly by the people, unlike members of the Cabinet. The change was made, but this time with no special-election provision. With a few minor updates, this is still the law today.
So we’re back where we started — a line of succession that allows for the possibility that a member of the party that lost the last presidential election can assume the presidency.
This is a terrible policy. The whole point of having a line of succession is to ensure a smooth transition and a continuity of administration in a time of crisis. Having a leader of the opposing party to take over the White House, especially in an era of intense political polarisation, would not achieve that, to put it mildly.
The succession law is also probably unconstitutional. Under Article II of the Constitution, only “officers” are eligible to serve as president. The framers almost surely intended to exclude legislators from that definition, as two constitutional scholars, Akhil Amar and Vikram Amar, pointed out nearly a quarter-century ago. Among many other pieces of evidence, there is a 1792 letter from James Madison, in which he criticizes the first succession law on the grounds that legislators are not “officers, in the constitutional sense” and that Congress “certainly err[ed]” by including them.
There are other big practical problems with the law. For one, even if lawmakers are not constitutionally ineligible to be president, they are without question barred from holding both jobs at once. So any lawmaker who may be called on to take over the presidency, even temporarily, would have to resign his or her office. It’s hard to imagine the Speaker quitting for a two-week gig in the Oval Office. (And if the Speaker declined, the job would go to the next person in line, although under the current law, the Speaker or president pro tempore is allowed to “bump” that person out and claim the presidency later — another bad idea.)
Then there’s the issue of age and experience: Many lawmakers have never had to carry out executive-branch responsibilities, and the top-ranking ones are frequently older than their peers. It’s not just Pelosi, who at 79 would be the oldest person ever to assume the presidency. The current Senate president pro tempore, which is a title customarily bestowed on the longest continually serving member of the majority party, is 86-year-old Charles Grassley of Iowa. In 2001, it was Strom Thurmond of South Carolina, who was then 98.
Finally, it’s true that the Speaker is popularly elected, but not in the way the president is. Trump won his office with about 63 million votes nationwide; Pelosi won hers with fewer than 300,000. Cabinet members, on the other hand, are hand-picked by the president and confirmed by the Senate, which makes them more like a vice president than a member of Congress.
There are many intractable problems in American politics, but the presidential succession law isn’t one of them. Congress can and should pass a law tomorrow removing legislators from the line, and replacing them with Cabinet members, including the secretary of state, the secretary of defence and the attorney general. They could also establish several new federal offices that exist solely to fill out the line of succession. The occupants of these offices should be confirmed by the Senate and based outside of Washington, in the event that a catastrophic event disables everyone else. And Congress should restore the special-election provision so that the identity of whoever becomes acting president doesn’t carry as much weight.
“This is a solemn occasion,” Pelosi said before last Thursday’s vote formalising the impeachment inquiry. “Nobody,” she said, “comes to Congress to impeach the president of the United States.” She is right, but the succession law puts her in an impossible position. Pelosi’s constituents and colleagues chose her to do a critically important job; she should be allowed to do it free from questions about her motives.
And Trump’s fate should be decided based on what he has done, not on who might replace him.
Jesse Wegman c.2019 The New York Times Company
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Updated Date: Nov 04, 2019 13:43:43 IST