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A fine proposal defeated by (among other things) the text of the Constitution

By Jack M. Balkin

Wisconsin history professor John Milton Cooper has a column in today's NYTimes entitled "The Pause That Depresses," which criticizes the hiatus between election and inauguration. Cooper, a noted Wilson scholar (who taught my wife a fine course in American history years ago at Wellesley), notes that Woodrow Wilson had resolved, had he lost the election of 1916 to Charles Evans Hughes, which turned on the California vote, to name Hughes Secretary of State and then, together with his Vice President, Thomas Marshall, resign so that Hughes could take office immediately. That, of course, proved unnecessary when Wilson carried California by fewer than 4000 votes. Cooper believes that Wilson would have been acting in the public interest and believes as well that we should today try to achieve a solution to the overly-long hiatus. (Obviously, George W. Bush and Dick Cheney are less public spirited than Woodrow Wilson, but that's another matter. Also, for what it's worth, Cooper doesn't make mention of Wilson's scandalous resolve to remain President following his debilitating stroke in October 1919 or his delusional desire to be drafted for a third term in 1920.)

Cooper concludes his column as follows:

Our current interregnum and its predecessor in 1933 have not been the only peril-filled transfers of power in our history ? 1861 was the scariest of them all ? and there ought to be a way to avoid or at least shorten such anxious passages. It is worth asking whether Woodrow Wilson?s idea could be wisely applied now.

The present law of succession appears to rule it out because the speaker of the House, not the secretary of state, is now third in line. But this line of succession is not graven in stone, much less embedded in the Constitution. Congress has changed it several times, most notably at the end of World War II, when the succession shifted to include more elected officials, but as recently as 2005, when Congress designated the secretary of homeland security as 18th in line. In fact, it is not even necessary to change the order, only to add a provision ? a version of Wilson?s plan ? allowing a president to resign after a successor is elected and have that successor take office immediately.

There?s no risk this would become standard practice, because outgoing presidents rarely want to leave before their terms expire. But we still need a procedure for the quicker transition of power in troubled times like these.

I obviously agree with Cooper's sentiments, but, alas, his suggestion betrays a certain lack of knowledge of the constitutional text (assuming one wants to take it seriously). First of all, if one has a public-spirited president who is willing to resign (along with his/her vice president), one really doesn't need to do much tinkering. Even with the present Succession in Office Act (and assuming, for sake of argument, that it's constitutional, which Akhil and Vikram Amar deny for reasons to be elaborated presently), one can work around the Speaker problem simply by having the current Speaker "resign," to be replaced by the President-elect. One of the things I learned from reading Tom Mann's and Norman Ornstein's The Broken Branch is that the Speaker, legally speaking, need not be a member of the House of Representatives, so there is nothing to bar the House from naming the president elect, who would then take office upon the resignation of the sitting President and Vice President even as the "former" Speaker would be re-elected to the office. If one agrees that the Succession in Office Act is either unconstitutional or simply a bad idea (as I do), then the solution is to revert to the pre-1947 act and make the Secretary of State next in line after the VP, which allows the Wilsonian solution.

So far, so good. The problem comes with Cooper's suggestion that the Congress amend the president-elect to make him/her next in line after the VP. The reason found in Article II,
Section One, Clause 6:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. (emphasis added)

One of the major parts of the Amars' argument as to the unconstitutionality of the Succession in Office Act is that neither the Speaker of the House nor the President pro Tem of the Senate is an "officer"; therefore, they are ineligible to be named in the line of succession. Even if one rejects this argument (though I believe they make their case convincingly), there is even less of an argument that the president-elect is an "officer." The most you can say is that he is a "potential" officer; the very point of inauguration, after all, is to engage in the civil religious rite of investiture. Until high noon on January 20, 2009, Barack Obama is just another citizen, with no more legal authority than any reader of this posting. After noon, he is, at least formally, the most powerful individual in America precisely because he will have become an "officer" of the United States.

So Cooper's proposal, which is motivated by concerns that I obsessively share, is defective in two important respects: 1) It requires the incumbents to be unusually self-effacing and willing to give up power to political enemies; and 2) its particular solution is unconstitutional. But at least he recognizes that something should be done. This puts him steps ahead of almost all of the punditry and editorial writers.

Full post as published by Balkinization on December 11, 2008 (boomark / email).

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