Congress Out of Succession?

Posted February 13, 2004 at 6:07pm

Sens. John Cornyn (R-Texas) and Trent Lott (R-Miss.) introduced legislation last week that would dramatically alter the current line of presidential succession, removing Members of Congress and clarifying what they believe are “chilling” ambiguities in the current system.

“I do think the legislative officers should be taken out of the line of succession,” Lott said at a press conference Thursday. “If we have to grandfather the current occupants in in order to get that result, I would consider that.”

There is broad consensus in both chambers that the Presidential Succession Act of 1947 needs to be reworked, and one school of thought holds that Members’ position in the chain of successors is unconstitutional. As the argument goes, the reference in Article II, Section 1 of the Constitution to Congress’ ability to declare by law what “Officer” shall act as president precludes House and Senate leaders because they are not “Officers,” with a capital O, as the framers intended within the succession clause. Rather, many scholars believe the clause only contemplates a Cabinet officer becoming acting president.

Beyond the constitutional questions, Cornyn and Lott want to remove the possibility that an act of succession could trigger a dramatic policy shift. They illustrated their point by explaining that under the current system, since 1969, there have been 10,038 days in which the Senate President Pro Tem has been a member of a party other than the president’s. There would only have been 2,405 days in which the Oval Office would have remained in the hands of the same party, had the President Pro Tem ascended to the presidency.

“The point is to have some consistency for the policies,” said Lott, chairman of the Rules and Administration Committee. “If something would have happened to [then-President Bill] Clinton or [then-Vice President Al] Gore, [then-Speaker] Newt Gingrich would have become president. I think most people would have said that’s a pretty dramatic change.”

Cornyn, who chairs the Judiciary subcommittee on the Constitution, asserted that terrorists should not be able to choose the composition of the government. “Our continuity procedures don’t reflect the realities of a post-9/11 world. It is now time for us to find the gaps in our national security and address them before it is too late,” he said.

In addition to taking the Speaker and the President Pro Tem out of line for the presidency — they currently queue up behind the vice president and before the secretary of State — Lott and Cornyn’s bill would also:

• add the secretary of Homeland Security to the list immediately following the attorney general (created long after the last time presidential succession was modified, the Department of Homeland Security is not currently represented);

• provide that any Cabinet member serving as acting president remain in the post until a new president is elected or the disability of the president or the vice president is alleviated (eliminating the current law’s “bumping” provision);

• remove the statutory requirement that a Cabinet officer resign his or her post in order to serve as acting president; and

• delineate that only already confirmed Cabinet members are eligible, eliminating the possibility of acting secretaries assuming the role of chief executive.

In addition to their Presidential Succession Act legislation, Lott and Cornyn also introduced a resolution that would establish a protocol to mitigate the country’s particular vulnerability to a terrorist attack on an inauguration day.

The resolution would have the incoming president nominate, the Senate confirm and the outgoing president “commission and appoint” as many Cabinet members as possible prior to swearing in.

Each presidential term ends every fourth Jan. 20 at noon, regardless of whether the incoming president is actually sworn in. If the incoming president and vice president were to be killed in an attack, there would be no figure with unqualified constitutional legitimacy. Compounding the problem, the outgoing administration’s Cabinet secretaries usually resign their posts prior to inauguration day.

Although it would be nonbinding, this resolution would encourage the incoming president and the Senate to ensure that at least some incoming secretaries could assume authority.

Last year, two pieces of legislation were introduced in the House that also seek to amend the current presidential succession law. Cornyn and Lott’s legislation significantly departs from both, however.

Although the House proposals themselves differ in their approach, both would leave the Speaker and the President Pro Tem in the line of succession. Like the Cornyn-Lott measure, both seek to clarify ambiguities in the 1947 statute.

A bill introduced by Rep. Brad Sherman (D-Calif.) would create a party litmus test for ascension to the presidency. His proposal would have either the Speaker or the House Minority Leader, whoever shares a party with the president, ascend to the White House first, followed by the Senate Majority or Minority Leader. Legislation co-sponsored by Reps. Christopher Cox (R-Calif.) and Martin Frost (D-Texas) has no such political requirements.

Neither House bill has moved from the Judiciary subcommittee on the Constitution, to which they were referred last session.

At the press conference Thursday, Lott and Cornyn expressed chagrin that the two chambers haven’t been able to work in a more bicameral fashion on continuity issues in general — including Congressional continuity, which has been far more controversial than reforming the presidential succession law because of the divisiveness over whether a constitutional amendment is required.

Lott lauded Cornyn for lending his expertise to the issue — the Texan previously served as state attorney general and as a Supreme Court justice in the Lone Star State — and both vowed to move the legislation expeditiously.

Speaking of the disconnect between the two chambers on the issue and his desire to press on in the Senate regardless, Cornyn said: “If we can’t do it jointly, [let’s] just do it.”