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Constitutional Succession

October 16th, 2006

The Washington Post has a frightening piece of Constitutional reporting today. Seems the House rules provide for a secret line of succession should something happen to the Speaker. The Speaker, as it would turn out, is the third in the line of succession for the Presidency should something happen to the both the President and the Vice President. The 25th Amendment provides a means for appointing a Vice President (who could then become President), but no way for appointing both a Vice President and a President as the VP must be appointed by the sitting President.

Enter the Presidential Succession Act of 1947. This act provides for the famous Cold War line of succession that was designed to give faith in our government. I know nothing would give me more confidence during a nuclear holocaust than knowing we had a properly, er, designated chief executive. This is the law that says the Speaker follows the Vice President. It does so with the following legalese.

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

So, to be clear, if George and Dick fall over dead tomorrow, Denny would resign from the House and assume the Presidency.

The question the Post raises is what if the same callamity that takes out the dynamic duo also strikes the big guy on the Hill? The Act has the following to say on the topic.

If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.

Clear, right, if there is no Speaker than the President pro tempore of the Senate takes over.

Now, all the lawyers in the audience will have noted my emphasis of the word no. What exactly does it mean to have no Speaker. The 108th Congress House Rules shed some light on the subject. Here is the text from Rule I, §8(b)(3)

(3) (a) In the case of a vacancy in the office of Speaker, the next Member on the list described in subdivision (b) shall act as Speaker pro tempore until the election of Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.

Here, the magical words are Speaker pro tempore, such authorities of the Office of Speaker, and lastly necessary and appropriate to that end. This language is far from perfect, but I think it’s clear the Post is wrong. First, the language makes clear that this unknown individual does not assume the Speakership. His or her title is quite clearly Speaker pro tempore. You’ll remember the Presidential Succession Act designated the Speaker, not the Speaker pro tempore.

But wait! What about “authorities of the Office of Speaker” and “necessary and appropriate?” Here’s my take. The Act says the Speaker must resign his position and then assume the Presidency. It could be argued that this resignation-assumption process is an authority of the Speakership. But such power can only be used when it is “necessary and appropriate to that end.” Which end? The end of being Speaker.

The purpose of the clause is to ensure there is a Speaker, not to ensure there is a President. The member who takes over as Speaker pro tempore pursuant to Rule 1 §8(b)(3) may not then use that power to become President because that’s not why they became Speaker pro tempore in the first place.

My final conclusion? If George and Dick and Denny all bite the big one, the country is still safe in Ted’s hands.

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