{"id":54114,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-tv-drama-commander-in-chief-and-the-constitution-is-the-federal-presidential-succession-statute-unconstitutional.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-tv-drama-commander-in-chief-and-the-constitution-is-the-federal-presidential-succession-statute-unconstitutional","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-tv-drama-commander-in-chief-and-the-constitution-is-the-federal-presidential-succession-statute-unconstitutional.html","title":{"rendered":"The TV Drama “Commander in Chief” and the Constitution Is the Federal Presidential Succession Statute Unconstitutional?"},"content":{"rendered":"\n
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The TV Drama “Commander in Chief” and the Constitution: Is the Federal Presidential Succession Statute Unconstitutional?
Part Two in a Series<\/span><\/h1><\/td>\n <\/tr>\n

By VIKRAM DAVID AMAR<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Dec. 08, 2005<\/td>\n\n <\/tr>\n <\/table>\n

In my last column<\/a>, I began an occasional series addressing some interesting constitutional issues raised by ABC’s new Tuesday night fictional drama “Commander in Chief,” created by Rod Lurie. The show depicts the Administration of the country’s first female President, Mackenzie Allen (played by Geena Davis). <\/p>

In the drama, Allen, a non-partisan Independent, had been Vice President to Republican President Theodore Bridges, who apparently tapped her to join the ticket more because of her personality than her politics. When Bridges suffered an aneurysm, he asked Allen to step down so that he himself could resign, and have the staunchly Republican Speaker of the House succeed to the Presidency. But she decided not to do so, and instead ascended on Bridges’ sudden death.<\/p> \n\n\n

In my previous column, I discussed the constitutional legitimacy of Allen’s decision. But what if Allen had, instead, honored President Bridges’ wishes by quitting? Such an action, too, would have raised a big constitutional issue: Whether the current federal succession statute<\/a> is unconstitutional insofar as it puts the Speaker of the House in the line of succession behind the Vice President. <\/p>

Of course, if Allen had<\/u> honored Bridges’ wishes, the TV show’s premise of a female President would have been destroyed, so there was really no doubt about what she was going to do. (And besides, as I argued last column, technically, she had the law of the Constitution on her side.) But in the real world, a similar situation might well arise, and if it does – and if the Speaker of the House becomes the President because a Vice President does resign – that could very well prompt a constitutional crisis.<\/p>

The Key Question: Who Counts as an “Officer” under the Constitution’s Succession Clause?<\/b><\/p>

Article II of the Constitution<\/a>, in what is called the Succession Clause, provides that whenever both the President and the Vice President have died or become disabled, Congress may “by law” (that is, by statute) decide “what Officer” should act as President. <\/p>

The key question, then, is who counts as an “Officer” whom Congress can place in the line of succession?<\/p>

Under the most recently enacted presidential succession statute, passed in 1947, in the event of a presidential\/vice presidential vacancy, the Speaker of the House assumes the Presidency. After the Speaker, the statutory line of succession continues with the President pro tempore of the Senate, and then members of the Cabinet, beginning with the Secretary of State. <\/p>

But as James Madison argued in 1792, congressional legislators are not “Officers” of the United States, as the Constitution uses the term. In the Constitution, “Officers” generally means executive and judicial officials, not legislators. (Otherwise, the Article I<\/a> rule that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office” would be incoherent – saying, in effect, that legislators cannot be legislators during the time when they are legislators, which is nonsense.)<\/p> Column continues below \u2193<\/a>\n\n