Deep flaws in the Presidential Succession Act of 1947 make the Federal Government incredibly vulnerable to attack by a foreign power. In testimony before the Continuity of Government commission in 2003, Yale Professor Akhil Amar described it as, "a disastrous statute, an accident waiting to happen."
What does the law say and what is its basis in the Constitution? Simply put, the 1947 act -- like its predecessors from 1792 and 1886 -- lays out the order in which various individuals shall act as President pursuant to the enumerated power of the Congress to make such decisions contained within Article II of the Constitution. The problem, however, is that the technical decisions made in crafting the 1947 bill are so flawed that they make its successful implementation in a grave national emergency nearly impossible.
The law's flaws begin at a fundamental level, with the order of succession that the Congress selected. The line after the Vice-President begins with the Speaker of the House followed by the President Pro Tempore of the Senate and then the members of the Cabinet. There's one obvious problem with this and one that's a little more subtle.
First, the office of the President Pro Tempore of the Senate has evolved into a ceremonial one that is traditionally held by the senior member of the majority party. In effect this means that someone in his or her 80's or 90's is likely to be the third in line to take up the presidency -- a distinct possibility during an immense crisis. But even if we handwave this away by arguing (I think foolishly) that no egocentric ninety-two year-old senator would be up to attempting to assume the Presidency at some pivotal moment, there is still a second issue: it remains an unsettled legal issue whether or not members of Congress are "officers" of the United States within the meaning of the Constitution.
This may sound like a trivial issue, but I -- and the members of the Continuity of Government commission who examined it nearly a decade ago -- disagree. The Constitution says that the Congress has the power to designate an "officer" of the United States who may, in the event of a double vacancy in the presidency and vice presidency, act as president. There are arguments, extending back to James Madison, that senators and representatives are not "officers" within the meaning of the Constitution and, therefore, they may not assume the office of acting president.
It is easy to imagine how it might become a gigantic issue, especially when one considers a second major problem with the law: in the interest of ensuring that the acting president is someone who was elected (even if only by the voters of a single congressional district), it provides that a congressional successor may displace an acting president who was previously a member of the cabinet. In other words, if a nuclear attack destroys the Capitol during the State of the Union and the "designated survivor" - say the Secretary of Energy -- is sworn in as the acting president, then afterwards a new Congress (or a handful of survivors of the old Congress) might assemble and elect a new Speaker who could then attempt to claim the Presidency. It is not difficult to imagine, especially if an attack had unleashed violent passions over, say, the use of nuclear weapons to retaliate or the scale of a foreign war, the former Secretary attempting to hold onto the presidency by asserting the unconstitutionality of congressional succession.
With no Supreme Court to make binding decisions on the matter, it's quite possible that different Federal Courts might reach different conclusions as to who the president is. Two different governments, each recognized as legitimate by some legal entities, may issue fundamentally contradictory orders, especially if the nation is deeply divided over how to respond to an attack. How the armed forces would respond is also unknown.
Further, there may be additional complications. It's an open question whether a handful of members of the House of Representatives constitutes a necessary quorum to do business. The House would take some months in order to repopulate itself through a series of special elections. On the other hand, the Senate could be reconstituted through direct appointments by Governors in a matter of days. While the act provides that a congressional successor may displace a cabinet one, a former Speaker or President Pro Tempore would be acting president for the remainder of the term, and one would not be able to bump the other. Thus, it is easy to imagine a scenario where there are three plausible claimants to the presidency.
First, you have a former cabinet member who claims that congressional succession is unconstitutional and who will have the tremendous PR advantage of having gotten there first. Second, you can have a former Speaker of the House, who will have the strongest claim if you're willing to accept the present law as broadly constitutional and to stretch credulity in terms of deciding what constitutes a quorum of the House of Representatives to do business. And then, finally, you may have a former senator -- elected by a Senate that undoubtedly has a quorum but faced with two rivals who got there first, even if the claims of each are based upon unsettled legal ground.
The best case scenario here is that the claimants waste valuable weeks or more wrangling over the issue, further injuring a badly-wounded nation. The worst case is that it actually comes to one or more using or attempting to use force to subdue the others
These perils are particularly outrageous when you realize that there are simple alternatives. These trade-offs are not the result of necessity, but of an overly complex law. I see two major alternatives.
First, Congress could pass a new Presidential Succession Act that returns to pure Cabinet succession. This would be simple and undoubtedly constitutional. The downside to this is that we may, at a moment of supreme danger, find an unqualified union lawyer who was appointed Labor Secretary as a thank-you gift suddenly forced to lead a threatened free world.
My preferred alternative is for an new Presidential Succession Act that allows the President, pursuant to the advice and consent of the Congress, to designate a list of individuals who would then become the President in the event of a double vacancy. The President would thus be free to put the nation's most talented senior statesmen -- people who might plausibly be able to take up the duties of the Presidency in an emergency -- in a position to lead the world through a nightmare scenario.
It is utterly inexcusable that, nearly a decade after September 11th, the Congress has failed to deal with the clearly-identified flaws of a law that would only ever be needed in a crisis. This is not a flashy issue or one that will generate much public interest until such a time as it becomes an overriding one. A minimal effort now might avert much future heartbreak and peril.