The TV Drama "Commander in Chief" and the Constitution: Is the Federal Presidential Succession Statute Unconstitutional?
Part Two in a Series

In my last column, 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).

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.

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 is unconstitutional insofar as it puts the Speaker of the House in the line of succession behind the Vice President.

Of course, if Allen had 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.

The Key Question: Who Counts as an "Officer" under the Constitution's Succession Clause?

Article II of the Constitution, 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.

The key question, then, is who counts as an "Officer" whom Congress can place in the line of succession?

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.

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 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.)

Granted, there are a few instances when the Constitution characterizes the leaders of Congress as "officers." But in these instances the legislator is an officer of the house in which he sits, not an "officer of the United States" or an "officer under the United States" - and these latter phrases are the constitutional phrases for which the word "Officer" in Article II's Succession Clause seems to be a shorthand.

One Reason for Excluding Members of Congress from Being "Officers" for Succession Purposes: Policy Continuity

This reading of "Officer" makes good structural sense. In particular, Article II envisioned that a Cabinet Secretary handpicked by the President himself would substitute in the sad event of double death or double disability. This rule of Cabinet succession (which was in place for sixty years before Congress changed the law in 1947) helps maximize the policy continuity between the President whom Americans voted for on election day, and the statutory successor who ends up taking his place.

Consider, for example, the scenario in "Commander in Chief." The fact that the Speaker of the House happens to be of the same party and of the same politics as President Bridges (the elected President) is a mere fortuity. For a good chunk of the country's history - especially in the Twentieth Century - the party leading the House of Representatives has not been the party controlling the White House. So ordinarily policy continuity - which was the goal of President Bridges when he asked Vice President Allen to resign - would not necessarily be furthered by legislative succession.

By contrast, members of the President's Cabinet - chosen by him to be his eyes, ears and arms - are much more likely to continue the President's agenda than is a leader of Congress. Indeed, Cabinet members are handpicked precisely because of their political similarity to the President and his trust in them to carry out his policies.

Put another way, intrabranch succession, here, plainly provides better political continuity than does interbranch succession - which, under the statute, hopscotches from the executive to the legislature and back again.

Other Structural Reasons for Excluding Legislators from Being Officers: Reducing Manipulation Incentives and Preventing Prime Ministerialization

The Constitution, best read, excludes legislators from the line of presidential succession for other structural reasons as well. In particular, if the leaders of Congress stand to become President in the event of a dual vacancy, Congress' incentives concerning important matters like impeachment and Vice Presidential confirmation become warped by personal ambitions and perverse incentives.

Take, for instance, the 1868 impeachment proceedings of President Andrew Johnson. In the eighteenth and nineteenth centuries (and indeed until the 1960s), there was no constitutional means for filling a Vice Presidential vacancy, so that after Lincoln's death Johnson served without a Veep. For this reason, conviction and removal of Johnson (which fell one Senate vote short of happening) would have triggered application of the succession statute. And the statute in effect then, like the one on the books today, provided for legislative succession, although the Act in place in the 1860s had the President pro tempore of the Senate ahead of, rather than behind, the Speaker of the House.

Senator Benjamin Wade was the President pro tempore of the Senate at the time, and thus was in line for the Presidency in the event Johnson was removed. Wade was, therefore, subject to a direct and powerful conflict of interest. Yet Wade vigorously participated in the trial and voted to convict Johnson. Indeed, according to reports, the Senator had already selected his new Cabinet when he cast his impeachment vote. Needless to say, the conflict of interest that Wade faced led many people to criticize his participation and his actions. But that very conflict of interest is itself generated by the constitutionally misguided current statute that - like the one applicable in Wade's day -- places legislators in the succession line.

The "Commander in Chief" show's facts illustrate the conflict-of-interest problem as well. In the drama, the Speaker of the House was called upon, under the Twenty-Fifth Amendment (passed in 1967), to preside over the confirmation process of President Allen's pick to fill the vice presidential vacancy she created when she became President. Needless to say, the Speaker had an incentive to delay the confirmation process, because if President Allen had fallen ill or died before a new Vice President had been confirmed, the Speaker would have assumed the Presidency. (In this regard, it bears noting that the Democrat-controlled Congress took three months to confirm Republican President Gerald Ford's pick for Vice President, Nelson Rockefeller. If something had happened to Ford during that 121-day window, Democrat Speaker of the House Carl Albert would have succeeded.)

These conflicts of interest are particularly problematic, constitutionally speaking, because they weaken the President's independence of Congress. When the Constitution's framers reflected on the process of presidential selection, they consciously rejected a Parliamentarian model in which the Chief Executive (a Prime Minister) is chosen by the legislature and its dominant party. Instead, the framers wanted the President ordinarily to have a power base independent of Congress, so he could stand up to the legislature; that is why Congresspersons cannot serve as presidential electors in the so-called "electoral college."

But this presidential independence is undermined if Congress can, by impeaching Presidents and Vice Presidents and/or withholding confirmation under the Twenty-Fifth Amendment, essentially vault their own leaders into the White House. If Congresspersons are "Officers" under the Succession Clause, they are empowered to subtly convert our system into the Parliamentarian model the founders decisively opted against.

What About the Electoral Mandate?

But what about the fact that Cabinet officers are not elected, the way members of Congress are? Shouldn't the occupant of the White House at least be a person who has won an election?

It is true that no Cabinet secretary enjoys a personal mandate from a national electorate. But neither do Congressional leaders picked within individual states and districts: Nobody in California or Nebraska or Ohio voted for current Speaker Dennis Hastert.

The only persons who receive any truly national electoral mandate are the President and (to a lesser extent, because of the way voters' hands are tied in voting for tickets, as I explained in my previous column) the Vice President. And Cabinet officers can claim proximity to that presidential mandate - the only mandate that counts - much more so than can Congresspersons (even nationally-known ones), because the President personally chose the Cabinet to be the leaders of his team.

Thus, I don't believe that an electoral mandate notion can justify including Congresspersons in the statutory line of succession - especially in light of the other strong constitutional arguments against doing so..

I do believe, however, that because nobody really has the democratic credibility enjoyed by an elected President, a Cabinet successor who takes over in the event of double death should serve only as long as is necessary to arrange a special off-year presidential election, to choose someone to finish the term. That way, the nation spends as little time as possible with a president lacking a personal national electoral mandate.