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Recent Opinions From Harvard Professors Goldsmith and Vermeule
Andrew Hyman

A few days ago, Harvard Law School Professor Jack Goldsmith posted a piece at the Lawfare Blog arguing that the presidential succession statute is vulnerable to constitutional challenge, which he says is enough reason for Congress to amend it.  I agree. The piece is titled "A Presidential Succession Nightmare" and is co-authored with one of his students, Ben Miller-Gootnick.  
The succession statute, which dates back to the Truman Administration, ostensibly puts the leaders of the House and Senate into the line of succession, whereas the Constitution says, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."  One might suppose that the leader of the House or Senate could resign from the House or Senate to assume the presidency, but the Constitution suggests otherwise ("such Officer shall act" as President). Alternatively, one might suppose that the leader of the House or Senate could resign from ordinary membership in the House or Senate, while retaining the leadership position, which raises the old question of whether the House or Senate could pick a non-member to be its leader; I doubt it, because the Constitution provides that, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." It would seem absurd for the House or Senate to have a leader who is not sworn to uphold the Constitution. Anyway, no matter who is right about succession, it could be disastrous to have a succession struggle in the United States that the judiciary might not feel equipped to resolve.    
Meanwhile, Harvard Law Professor Adrian Vermeule has a piece up at The Atlantic suggesting that the philosophy of constitutional originalism was useful, but now conservatives and/or Republicans should emerge from their defensive crouch and adopt a better philosophy of constitutional interpretation.  The essay is titled "Beyond Originalism."  I disagree with Professor Vermeule, and I'll just note here two reasons why.  First, he says that the theory of originalism was "initially developed in the 1970s and ’80s" but this seems way off the mark, as explained recently at this blog by Robert Natelson who wrote: "Anti-originalists sometimes contend that originalism is a creation of modern conservatives. History renders this claim risible."  Natelson provides good evidence.  Another big disagreement I have with Professor Vermeule is when he says this:
The general-welfare clause, which gives Congress “power to … provide for the common Defence and general Welfare of the United States,” is an obvious place to ground principles of common-good constitutionalism.
That sounds very persuasive, until one looks at what lies beneath Professor Vermeule's ellipsis, and discovers that the Clause actually gives Congress this:
Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States
Congress obviously has no general power to provide for the general welfare. If it did, then the states would have no sovereignty, but rather would be instruments of Congress. Maybe this point of mine will become clearer from the following examples of how not to use an ellipsis while quoting the U.S. Constitution.... “[I]ntoxicating liquors….shall not be denied … by the United States or by any State on account of age….” “The power[]….of the President….shall not be questioned….” “The Senate shall have the sole Power to try….sex.”

And, here's one more, that's especially applicable to the incumbent president: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been….tried by….the Senate….”