Structural Principles and Presidential Succession

74 Pages Posted: 11 Sep 2001

See all articles by Howard Wasserman

Howard Wasserman

Florida International University (FIU) - College of Law

Date Written: August 2001

Abstract

An important, but often overlooked, aspect of the Constitution is the way in which it established and structured the federal government, including the methods and procedures for selecting officeholders. The Constitution establishes some of these procedures itself and punts others to Congress for the passage of framework legislation. Any decisions as to the design, creation, and operation of a selection procedure reflect four underlying structural principles - separation of powers, federalism, democracy, and political partisanship. Any selection scheme reflects a choice or emphasis on one or more of these principles and a change in the principles of emphasis often will require a change in the selection procedures. Every selection decision can and should be examined against these principles to determine what principle or principles are at work; whether the choice properly reflects the principle or principles that it is trying to reflect; and whether a different procedure would better serve the intended principles.

One selection issue that was punted to Congress and the legislative process was executive succession in the event of a double vacancy in the presidency and vice presidency. The current statute provides for legislative succession, through the Speaker of the House of Representatives, and is the reason that Secretary of State Alexander Haig was wrong when, following the 1981 assassination attempt on President Reagan, Haig famously declared that he was "in control, here in the White House."

This Article examines three structural principles - separation of powers, political partisanship, and democracy - and the role each plays in selection under the Constitution. It then analyzes the current double vacancy statute in light of these. It concludes that the present succession order is inconsistent with all three principles, considered individually and on overall balance. A scheme more consistent with each of these principles would establish cabinet succession, beginning with the Secretary of State. The new statute also should provide for a special presidential election as soon as possible.

Suggested Citation

Wasserman, Howard, Structural Principles and Presidential Succession (August 2001). FSU College of Law, Public Law Working Paper No. 34. Available at SSRN: https://ssrn.com/abstract=281670 or http://dx.doi.org/10.2139/ssrn.281670

Howard Wasserman (Contact Author)

Florida International University (FIU) - College of Law ( email )

University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)

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