Sherman Offers Bill on Presidential Succession

Posted September 29, 2004 at 6:14pm

After years on the Congressional backburner, efforts to modify presidential succession may be brought back to the forefront as early as Friday, when the House Judiciary Committee plans to hold a hearing on the flaws and potential remedies for the crucial government continuity provisions.

Revising the 1947 Presidential Succession Act, which as it now stands is considered by most experts to be at best mechanically difficult and at worst unconstitutional, has consistently received even less attention than the problem of legislative branch continuity since Sept. 11, 2001. This discrepancy comes despite modifications to executive branch succession require simply a statutory change, while some Members and scholars believe ensuring Congressional continuity requires an amendment of some kind.

Rep. Brad Sherman (D-Calif.) is planning to introduce legislation soon that would dramatically alter the current line of succession. His interest in the issue precedes the 2001 terrorist attacks, and he said he recently spoke with Judiciary Chairman Jim Sensenbrenner (R-Wis.), who agreed to hold a hearing.

Friday’s scheduled hearing, which will likely be postponed if the House is not in session, is the first on the subject in the House and only the second hearing held by either chamber. The Senate held a joint hearing with its Judiciary Committee and the Rules and Administration panel last fall. After that hearing, Sens. John Cornyn (R-Texas) and Trent Lott (R-Miss.) drafted a bill that would remove Members of Congress and clarify what many believe are dangerous ambiguities in the current system.

In an interview, Sherman described his legislation as a way to avoid the “many, many problems” associated with having the Speaker and the President Pro Tem in line for the presidency after the vice president. “And then we deal with the unique period of vulnerability that starts with the conclusion of the major party conventions and that ends with the swearing-in of the president and the vice president and Cabinet members,” he said.

His proposal would move House and Senate leaders to the bottom of the succession chain after all the Cabinet secretaries. The secretaries would appear in order of the creation of their departments (as the statute currently reads), and after the Cabinet would come the ambassadors to the United Nations, United Kingdom, France, Russia and China — additions to the list who would provide potential successors based outside of Washington.

Instead of leaving the Speaker and President Pro Tem in the line regardless of party affiliation, however, Sherman would have the president-elect transmit to the Clerk of the House and the Secretary of the Senate his or her choice among the Speaker or the House Minority Leader and then the Senate Majority or Minority Leader. This “continuity of philosophy,” Sherman said, would provide ideological consistency in the event of a tragedy, as presumably the president would choose the top Senate and House leaders of his or her party. It could also discourage politically motivated violence, he argued.

“Throughout history, assassination for the purposes of changing a government is common,” Sherman said. “John Wilkes Booth is the best example we have. He just didn’t try to kill [President Abraham] Lincoln,” but also those in the line of succession. “Does anybody think Osama bin Laden is less ambitious?”

Sherman conceded that “there’s certainly an argument” that including Members of Congress at all is unconstitutional, as many scholars have maintained, and “the very fact that there is such an argument could call into question the legitimacy of the president of the United States in a time of crisis.” But he determined that Congressional leaders should remain available, even if it’s at last resort.

Many constitutional scholars believe having Members in the line of succession is unconstitutional, because the reference in Article II, Section 1 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. That was James Madison’s view in 1792, when Congress debated the first succession act. Madison lost that debate, at least temporarily, as Congress placed the President Pro Tem and the Speaker in line (in that order) to take over the executive branch. It has vacillated since, as revisions were made to the statute. Members were removed and replaced by Cabinet officials in 1886, only to be added again, in the opposite order, by the 1947 statute.

Some scholars also believe that Members put themselves in line to succeed the president largely to avoid a highly political, and personal, issue in the early 1790s. Choosing the order of Cabinet officers would entail making a determination as to whether bitter rivals who were both instrumental in the formation of the republic — Secretary of State Thomas Jefferson or Treasury Secretary Alexander Hamilton — should be first in line to succeed George Washington.

Previous bills to reform presidential succession, including the Cornyn/Lott measure as well as legislation introduced last session by Reps. Christopher Cox (R-Calif.) and Martin Frost (D-Texas), proposed, among other things, inserting the secretary of Homeland Security after the attorney general in the Cabinet line. Sherman’s soon-to-be introduced legislation (which is a revised version of an proposal he introduced last year) would put DHS in line after Veterans Affairs, the second most recent agency to be created.

“Whether you put Homeland Security in the middle of the deck and the bottom of the deck I don’t think matters much,” Sherman said, explaining that in 10 or 20 years it’s not certain that the Homeland Security secretary will be any closer of an adviser to the president than, say, the secretary of Education.

Under current law, presidential succession becomes even more unclear if no president-elect has been declared on Inauguration Day. The presidential term ends Jan. 20 at noon, regardless of whether a new president is sworn in. In that case Sherman’s bill would have the Speaker become president until such time as a president-elect has been qualified.

His bill also calls on the president-elect to work with the outgoing president and the Senate to get his or her Cabinet confirmed prior to Jan. 20, so they could form a succession line if the president- and vice president-elect were killed on Inauguration Day. This section also contains nonbinding resolutions currently pending in the House and Senate, sponsored by Sherman and Cornyn, but both have been held up by election-year politics.

Sherman’s bill would encourage the candidates to announce whom they would want to succeed them should they be killed after the party conventions. The measure also asks the parties to put appropriate procedures in place so that their presidential electors vote for the vice presidential nominee for president should their presidential nominee die.

While Sherman acknowledged that all these scenarios seem “far-fetched and macabre,” he said Congress must address them.

It’s unclear, however, just how far any continuity of government initiatives will go in a polarized Congress just weeks before a presidential election. The Senate, for its part, has not shown a particular willingness to address presidential succession before the end of the Congress, and the House has also not made the issue a high priority.