Legislative Officer Succession: Part I
A trilogy of highly influential and frequently cited articles published by Professors Akhil Reed Amar, Vikram David Amar, John F. Manning, and Steven G. Calabresi in the Stanford Law Review in 1995 generally took the position, with varying degrees of confidence, that as a matter of original public meaning, the Constitution precludes legislative officers from succeeding to the presidency under the Succession Clause. The Succession Clause provides:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
In other words, the Succession Clause permits Congress to enact a statute (or statutory framework) controlling succession in the event of a double vacancy, i.e., when both the President and Vice President's offices go vacant. But the Succession Clause limits congressional discretion. Only an officer may succeed to the presidency under the aegis of this clause. The Amars ask whether the Speaker of the House and the Senate President pro tempore are officers within the meaning of the Succession Clause. And they answer the question in the negative. Looking to constitutional text, structure, and history, they argue that legislative officer succession is not permitted under rubric of the Succession Clause.
Although the Stanford Trilogy (and the Stanford Trilogists too) are now some thirteen years older, there are two very sound reasons to be interested in these dated articles. First, the underlying question is still of great import as Congress has chosen to put both the aforementioned legislative officers at the head of the line of succession. In other words, our current succession law calls for the presidency to devolve on persons who, at least according to prominent commentators, are flatly ineligible as a matter of constitutional law. There is a second reason to be interested in the Stanford Trilogy. The Stanford Trilogy is the very exemplar of modern originalism. It is widely cited. But it is more than that. It is warmly praised and widely admired.
Here, in this Article, I too intend to focus on text, structure, and history - but mostly on text. I do not defend Congress' statutory craftsmanship in toto, and I recognize that Congress' Succession Statute, 3 U.S.C. § 19, suffers from a variety of defects both from a normative or policy perspective and several possible constitutional infirmities. Nevertheless, in the remainder of this Article, I will take a position contra the authors of the Stanford Trilogy, and argue that legislative officer succession, standing alone, is not among the statute's constitutional defects.
I hope to post the next section of this article in 4 to 6 weeks. Comments on this section are welcomed. Opportunities to present a fuller version of this paper at a faculty colloquium would be welcomed. Offers to publish would also be very welcomed.
[May 2, 2011]
Seth Barrett Tillman, Legislative Officer Succession: Part I (April 6, 2007) (unpublished manuscript) (on file with author), available at http://works.bepress.com/seth_barrett_tillman/12/, also available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=978878.
Madison to Pendleton Letter (Feb. 21, 1792)