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

21 Pages Posted: 27 Oct 2020 Last revised: 21 Jun 2021

Date Written: October 18, 2020

Abstract

Is the Speaker of the House of Representatives properly and constitutionally second in line for the presidency? The question gained urgent relevance when former President Trump, late in his term, was infected with the coronavirus, which also spread among top levels of his administration. If a double vacancy had occurred due to the death or incapacity of both Trump and then-Vice President Mike Pence, who would have been next in line? The question remains relevant under President Biden, regardless of which political party controls the House and the Speakership.

The Presidential Succession Act, passed by Congress in 1947, says the Speaker of the House 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 the Speaker 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 the Speaker's right of succession in the event of a double-vacancy crisis would be a dangerous and reckless usurpation. (The author of this paper agrees with the Amars, however, as a policy matter, that it would be best to amend the relevant statute to remove the Speaker from the top of the line of succession.)

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