A Defense of the Legislative 'Officer' Succession Provisions
Seth Barrett Tillman, A Defense of the Legislative “Officer” Succession Provision, 91 Fordham L. Rev. Online 23–27 (2022)
5 Pages Posted: 10 Oct 2022 Last revised: 3 Nov 2022
Date Written: October 8, 2022
I am going to try to reframe the issue very slightly. One way of looking at the issue is: What were the Framers trying to fashion when they drafted the Presidential Succession Clause? What were they hoping to achieve? Or, another way of looking at the question is: What should any of us want to achieve by a presidential succession regime?
It strikes me that a working presidential succession model has to have three characteristics: it has to produce a timely result; it has to have a clearly identifiable successor; and it has to be legally and recognizably valid, and in the sense used here, constitutionally valid is part of that. What we have now is a statutory legislative officer succession regime, which was also part of what was the (presumptive) original legislative officer succession statutory regime. The chief alternative was what we had in the 1886 statute, and that is Cabinet officer succession. I would like to compare the two models.
Does Cabinet officer succession meet the three goals I outlined before? I would say the answer to that is “no.” Cabinet succession is a fixed list. If the entire membership of that fixed list is decapitated by war, or a pandemic, or otherwise, then you do not have a successor, and that is the end of the whole ballgame. In such circumstances, you do not have anyone constitutionally and otherwise legally valid to succeed.
The problem cannot be corrected once it occurs. A fixed list requires a fix or an amendment. That means a new statute. A statute requires a president and that is the whole problem we have. Ex hypothesi, we do not have a president. Cabinet succession risks the end of the system, and it puts it beyond judicial resolution because there would not be a situation of competing heirs with competing claims, there would be no heir at all.
What about legislative officer succession? Does it meet the three goals I outlined before? The answer is, “yes,” it does. It is not fixed. It can be expanded, not only expanded, but the list can be expanded without a statute and without a president. There is always a House and Senate in being, and if the presiding officer dies, then each of the two houses can just elect, by simple majority, a new presiding officer, and that solves the problem. If the entire membership were to be decapitated, then the Senate can be quickly reconstituted by gubernatorial appointments, and the House can have speedy ad hoc by-elections under well established rules. Again, we could get a new presiding officer immediately or in fairly quick order. There is always going to be a legitimate heir with legislative officer succession, and if there is not one on hand, one can be quickly arranged.
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