Opening Statement by
Before the House Judiciary Committee Subcommittee on the Constitution
Chairman, Good Morning. I would like
thank you and Ranking Member Nadler for conducting these hearings today. As I’m sure they and their staffs can attest,
I have spent a great deal of time pushing for Congress to address the issue of
Presidential succession, beginning with a Special Order in December, 2000. I am happy to see it is being taken seriously
today and more importantly that it is being addressed in a bipartisan
manner. There is no Democratic or
Republican platform plank on Presidential succession. It is not an issue we discuss with swing
I would also like to thank all the experts who have come here today. These are some of the premier minds in the country on constitutional and succession issues, and it is important we hear their insights on how to best solve the problems of Presidential succession.
One thing to emphasize is this is a problem we can address without amending the Constitution. Article II, Section 1 provides: “Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President…” However, Congress has not substantially legislated on this matter since the Presidential Succession Act of 1947.
Currently, if the President dies, the Vice President becomes President. If the Vice President’s office is vacant, than the Speaker of the House ascends to the Presidency. After that is the Speaker Pro Tempore, and following that are the members of the Cabinet in the order of department creation, excluding the Secretary of Homeland Security who has not yet been added to the list. This same order applies when the Presidency is temporarily vacant under the 25th Amendment.
What is most important here is continuity and legitimacy: continuity of the policy program selected quadrennially by the voters, and the unambiguous right of a single person to serve as our legitimate president. Unfortunately, our current law falls far short of achieving these objectives.
CONTINUITY OF POLICY
will of the people would be subverted if a Congressional leader of a different
party ascended to the Presidency, and completely reversed the course of
government set by the elected administration.
Current law could mislead terrorists into believing that by killing the
President and Vice President, they could alter
In 1865, John
Wilkes Booth organized a conspiracy which not only killed
Perhaps worse than a shift in policy is the fear of such a shift. If the office of the Vice President is vacant and the President is disabled, the Cabinet may fear exercising the 25th Amendment because the Speaker of the House could alter policy in a way that the President disagrees with. Would a President take a leave, say for an operation, vesting the Presidency temporarily in the other party?
Had Gerald Ford not been promptly confirmed as Vice President, who is to say that President Nixon would have resigned his office when he did, turning the Presidency over to Speaker Albert, a Democrat. If President Nixon had been impeached, would the Senate have tried him in a non-partisan manner, knowing Speaker Albert was next in line?
Speaker Albert could have used his power to slow down the confirmation of Mr. Ford, believing that eventually Mr. Nixon would be removed from office, giving him the Presidency. We were fortunate to have a man of integrity serving as Speaker – we should always be so lucky, but we cannot count on that fortune.
CLEAR LEGITIMACY OF A SINGLE PERSON TO SERVE AS PRESIDENT
Nothing is more important than making sure that whoever succeeds to the Presidency is seen as the legitimate leader of this country. Under current law, there are scenarios where one catastrophe could result in as many as four claimants to the Presidency.
Unfortunately, a discussion of Presidential Succession requires us to assume morbid events. So, please bear with me. Imagine that the President and Vice-President are at the Capitol for an official event. A disaster occurs resulting in the death of the President, Vice President, Speaker of the House and President Pro Tem of the Senate.
Under current law, the Secretary of State would become the President. However, if the Senate acted quickly to name a new President Pro Tempore, she would “bump” the Secretary of State to become President. Once the House elects a new Speaker, the new Speaker would “bump” the Senate President Pro Tempore, who would then become a private citizen, having given up her Senate seat to serve as President for just a few days.
The new President – the former Speaker of the House – might not nominate a Vice-President under the 25th Amendment. Because, once confirmed, the new Vice President, now a “prior-entitled individual” would “bump” the former Speaker and become the President. Needless to say four Presidents resulting from one catastrophe would lead to a great deal of confusion. That confusion would only be amplified should one of these figures not abide by the law or challenge the succession laws in court. All of the outcomes outlined above represent the leading interpretation of the current statutory scheme. However, each of the temporary Presidents could make a credible claim to retaining the Presidency.
When it comes to Presidents – one is good; more than one is not better. Especially not at a time of national discord or international challenge.
There are a few other problems that I will briefly highlight here that should be considered.
current line of succession does not include anyone who resides primarily
If a party nominee dies the day before the general election – will the people know who they are voting for? What if the winner of the Electoral College dies before the counting of the votes in early January – will the Vice President-elect become the President-elect? What if the President-elect and Vice-President elect both die after the Electoral College meets, but before the inauguration?
These are just a few short examples. In a post 9/11 world, our presidential succession system should be as solid as the barriers around the Capitol.
Last year, I introduced a Presidential Succession Act, H.R. 2749, which was my first step in solving these problems. Since then, I have been working with Members of both parties and both chambers, as well as academic experts, to improve my legislation and I am now prepared to introduce a new bill that I believe can rectify virtually all of the current problems, without amending our constitution. My hopes is that members of this subcommittee will either join me in introducing the new bill and/or would work with me on a bill they might introduce.
First, the line of succession should run through the Cabinet Officers, not through the Congressional leadership. This is included in my draft and in a bill introduced by Senator Cornyn in the Senate. This insures that the philosophy selected by the electorate governs for four years: it also avoids the bizarre situation where a Speaker would have to resign from the House to serve as temporary President for only a few hours, perhaps while the President undergoes surgery. It allows a President to take a leave of absence with peace of mind - - knowing the opposing party will not “take over.” Finally, it eliminates any conflict of interest as a Speaker guides the House, either through an impeachments, or through the confirmation of a replacement Vice President under the 25th Amendment.
my new legislation adds five ambassadors to the end of the succession
list. In my view, the best ambassadors
for this are the United Nations Ambassador (who in some Administrations has
“cabinet rank”), followed by the ambassadors to the four other permanent
members of the United Nations Security Council.
These five ambassadors are probably the five top executive branch
officials who do not reside in the
DEALING WITH THE TRANSITION PERIOD
We face unique vulnerabilities between the day the political parties select their respective nominees and the day we have sworn in a new President, and Vice President, and at least several new Cabinet secretaries. New legislation should deal with each phase of this transition period.
First, there is the period between the conventions and the day the Electoral College meets in early December. Voters should know, and electors should pledge, that if the Presidential Nominee dies, the party’s electors will vote for its vice presidential nominee for President. Likewise, each party should have a third and fourth person on the list, publicly announced by the Presidential Nominee so that voters will know, and electors will feel themselves bound. Anything less would lead to voter confusion if there was one or two assassinations just before Election Day, or might lead a party’s electors to split their votes if there were assassinations, just after Election Day. A section of my proposed legislation urges the parties to list their third and fourth and fifth in line; preferably such announcement will be made at or before the convention by the Presidential nominee.
Many scholars believe that the Electoral College cannot meet a second time, thus leaving us vulnerable between the date it meets and the date the new President is sworn in, and even until a good number of the new President’s Cabinet officers are confirmed. A resolution introduced by Senators Cornyn and Feinstein in the other body, a similar resolution I introduced in the House, and a section of the proposed legislation would urge the President-elect to name, and the Senate to act on, many Cabinet nominations soon after the election. Under my legislation, these new Cabinet members, named by the President-elect and confirmed by the Senate, would then stand in the line of succession. They would succeed to the Presidency if the President-elect, and Vice President-elect, died before, on or after Inauguration Day.
after the Electoral College meets, the President-elect would transmit to the
outgoing President names of individuals that he or she is planning on
appointing to at least some Cabinet posts.
Those the outgoing President finds acceptable would be sent to the
Senate for confirmation. At least one of
these figures could be confirmed prior to the inauguration and kept in a secure
location during the ceremony as is done with the State of the
There is of course the risk that the outgoing and incoming President, or the Senate, are not obliging so that there are no Cabinet officers to succeed to the Presidency. In this case only, we should turn to Congressional Leadership. But, to ensure continuity of policy, the Congressional leaders at the end of the presidential succession list, would be designated by the President-elect prior to taking office. After the casting of the Electoral votes, the President Elect would file with the Clerk of the House and the Secretary of the Senate which House leader, Speaker or Minority Leader, and which Senate Leader, Majority or Minority Leader, they want to succeed them should the worst happen. This notification would be effective at on inauguration day. The President-elect (or President after Inauguration) could change the designation by filing replacement documents; this might occur if a Minority Leader became Speaker due to a change in majority.
I have been reaching out to scholars, some of whom are with us today, to discuss my bill and make sure it is the strongest piece of legislation possible. I would like to submit two letters of support I have received into the record.
The foregoing scenarios can seem far-fetched and macabre. But the nuclear age and the age of terrorism have thrust them upon us.
Again Mr. Chairman, thank you for holding this hearing.