Not Proved: Some Lingering Questions About Presidential Succession

Abstract

This paper examines textual and structural arguments made by Professors Akhil Amar and Vikram Amar against placing the Speaker of the House and the President pro tempore of the Senate in the line of succession to the Presidency, as the Presidential Succession Act of 1947 does. The paper argues that neither the text nor the history of Article II’s Succession Clause speaks decisively to the question of whom Congress may, by statute, place in the line of succession to the Presidency. For that reason, the assignment of the burden of persuasion on the question of constitutionality necessarily plays a large role in the analysis. Certainly, the text and structure of the Constitution justify “substantial” doubts about the validity of the Presidential Succession Act. But if Congress' implementation of the Succession Clause warrants the presumption of constitutionality traditionally enjoyed by Acts of Congress, then there is good reason to hesitate before declaring unconstitutional Congress' longstanding (but not unbroken) practice of placing legislative “Officers” in the line of succession.