The Speaker of the House and Presidential Succession: An Argument and Addendum

21 Pages Posted: 27 Oct 2020 Last revised: 6 Jan 2021

Date Written: October 18, 2020

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.

The paper also notes intriguing evidence (addendum, pp. 6-8) that impeachment may have been originally understood to be available for members of Congress.

Note: The four-page essay comprising the first part of this paper was published in slightly different form on the Jurist website on October 16, 2020. This combined paper, including the addendum at pages 5-18, was originally posted on SSRN on October 18, 2020.

Keywords: Presidential Succession Act, Speaker of the House, Officer of the United States, Article VI, Oath Clause, Religious Test Clause, 14th Amendment, Nancy Pelosi, Donald Trump, Mike Pence, Mike Pompeo, Bill Barr, Akhil Amar, Vikram Amar, Jack Goldsmith

JEL Classification: K19, K39

Suggested Citation

Wildenthal, Bryan H., The Speaker of the House and Presidential Succession: An Argument and Addendum (October 18, 2020). Thomas Jefferson School of Law Research Paper No. 3714362 (2020), Available at SSRN: https://ssrn.com/abstract=3714362 or http://dx.doi.org/10.2139/ssrn.3714362

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States

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