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10/21/2020

Bryan Wildenthal: The Speaker of the House and Presidential Succession
Michael Ramsey

Bryan H. Wildenthal (Thomas Jefferson School of Law) has posted The Speaker of the House and Presidential Succession: An Argument and Addendum (19 pages) on SSRN.  Here is the abstract:

Is Nancy Pelosi, as Speaker of the House of Representatives, properly and constitutionally second in line for the presidency? The question has urgent new relevance in light of President Donald Trump’s recent infection with the coronavirus and the related spread of infections in the top levels of his administration. If a double vacancy occurred due to the death or incapacity of both Trump and Vice-President Mike Pence, who would be next in line?

The Presidential Succession Act, passed by Congress 73 years ago, says that Speaker Pelosi would take over as Acting President.

But an essay by Professor Jack Goldsmith of Harvard Law School (co-authored with Ben Miller-Gootnick) claims there is “a powerful (though not airtight) argument” that placing top congressional leaders like Pelosi in the line of succession violates the Constitution. Goldsmith, like many others, relies heavily on a 1995 law review article by Professors Akhil Reed Amar and Vikram David Amar.

This paper responds to the Goldsmith and Amar articles. It contends that the argument touted by Goldsmith and the Amars is not only “not airtight,” it is not even persuasive. It is stunningly weak. Any challenge to Pelosi in the event of a double-vacancy crisis would be a dangerous and reckless usurpation.

The paper argues, in particular (in the addendum expanding on the Jurist essay), that careful readings of the Article VI Oath and Religious Test Clauses, and of Section 3 of the 14th Amendment, powerfully support this interpretation of the Constitution and boomerang devastatingly against the argument set forth in the 1995 Amar article.

Some related thoughts on this blog, tending to agree with Professor Wildenthal, are here.  The more I think about it, the more I think he's right.  The succession clause says only that Congress must pick an "Officer" for the succession, not that it must pick an "Officer under the United States" (or some similar formulation that might be read to include only executive officers).  The Speaker is expressly called an "Officer" in the Constitution (Art. 1, Sec. 2).  While there might be a separation-of-powers problem with the Speaker simultaneously serving as Speaker and acting President, the current succession act takes care of that problem by requiring the Speaker first to resign from Congress.