Forum: Author Hangout

For what it's worth, James Madison said that no member of the Congress could be in the line of succession (despite the statute being passed not long after the Constitution was ratified).

The drafting of the Constitution was a group effort. James Madison's opinions are not the be all end all of constitutional interpretation.

And the current succession list was originally enacted in 1947, after WWII, and last amended after the creation of DHS. There are 17 positions in the list.

https://en.wikipedia.org/wiki/United_States_presidential_line_of_succession

Only two members of Congress are on the list. Of course they are 2nd and 3rd, right behind the VP.

It's not just my opinion and others agree with Madison's analysis.

It doesn't matter how many people agree with Madison's analysis until someone convinces a majority of the US Supreme Court.

As it stands now, even if you could find someone with standing to bring a challenge, the case would probably get dismissed under the political question doctrine.

Imagine if something were to happen to POTUS and VPOTUS, and the Secretary of State declares they are President, and the President Pro Tem does the same.

Former Sec State is in charge at the White House and refuses to yield. Congress disagrees. Chaos ensues.

And SCOTUS refuses to get involved.

PS. It would be the Speaker of the House not The President Pro Tem of the Senate.
The Speaker is second after the VP and the President Pro Tem of the Senate is third in line.

That was actually the premise of 'The Man' by Irving Wallace back during the height of the Civil Rights movement in 1964, and before the 25th Amendment was passed. The VP had just died, with no replacement named or voted on yet. Then the President and Speaker of the House are in a building collapse in Europe that kills the President, and injures the Speaker of the House who dies in surgery.

But that is not the scenario I was replying to.

Imagine if something were to happen to POTUS and VPOTUS, and the Secretary of State declares they are President, and the President Pro Tem does the same.

No mention of anything happening to the Speaker, which would leave the speaker first in line in the described scenario.

Prior to the 25th Amendment was passed there was no way to replace a vice president prior to the next presidential inauguration.

The need for a method to replace the vice president was evident much earlier - with seven presidents spending more than three consecutive years without a vice president. This is not including James Madison who served two terms and neither of his vice presidents lasted four years.

Any person claiming the office would have standing to bring the action.
That wouldn't be a political question - it would be basic determination of the meaning of the constitution.

That wouldn't be a political question - it would be basic determination of the meaning of the constitution.

There are a number of clear constitutional requirements that the US Supreme Court has refused to enforce under a number of doctrines.

https://constitution.findlaw.com/article3/annotation12.html

What Is the Political Question Doctrine?

The political question doctrine limits the ability of the federal courts to hear constitutional questions even where other justiciability requirements, such as standing, ripeness, and mootness, would otherwise be met.1 The Supreme Court has stated that, for purposes of Article III of the Constitution,2 "no justiciable 'controversy' exists when parties seek adjudication of a political question."3 But the term political question is a legal term of art that on its face gives little indication of what sorts of cases the doctrine bars federal courts from deciding. The phrase, which has its origins in Chief Justice Marshall's landmark opinion in Marbury v. Madison,4 is potentially misleading, as federal courts deal with political issues, in the sense of controversial and government-related issues, all the time.5 Rather than referring generally to any such political issue, the term "political question" expresses the principle that some issues are either entrusted solely to another branch of government or are beyond the competence of the judiciary to review. Finding that a matter qualifies as a political question divests federal courts of jurisdiction, meaning they lack the power to rule on the matter.6

There is a serious question as to whether the presidential succession act is constitutional.

There is a serious question as to whether the presidential succession act is constitutional.

US Constitution Article 2, Section 1, Clause 6:

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.

It is exceeding unlikely that the Presidential Succession act would be declared void in it's entirety.

The current succession act covers 17 positions beyond the Vice President (specified in the constitution itself).

If the holder of any office on the list is ineligible for the presidency, that position is skipped over.

There is an open question as to the constitutionality of including the Speaker of the House of Representatives and the President pro tempore of the Senate.

If the courts ever considered it and decided that including those two positions was unconstitutional, it would likely simply make those two positions get skipped over rather than declaring the entire succession act unconstitutional as there is clear constitutional authority for Congress to establish succession beyond the Vice President.

ETA: Here is a link with the complete succession list under current law.
https://www.usa.gov/presidential-succession

I agree. The problem might be the speaker and president pro tempore.

I agree. The problem might be the speaker and president pro tempore.

The speaker and president pro tempore are the only remotely possible constitutional issues with the Presidential Succession Act.

And it would take a very unusual circumstance to get that in front of the court for a decision on the merits.

The only person who would have standing to challenge it would be the Secretary of State (4th in line), and even then due to the requirement for an actual case or controversy, The SoS could only file suit after the President and VP were eliminated and the Speaker attempts to succeed them.

a complete and utter mess.

So, no change then?

When Reagan got shot, SecState Al Haig announced that he was in charge. VP George HW Bush reminded him, and the public, that he was in charge as Acting President until RR was able to discharge the duties of president again.

It is, like many things, a myth. Haig clearly meant that he was in charge of the situation room, not the country. The statement continued:

"As of now, I am in control here, in the White House, pending return of the vice president and in close touch with him. If something came up, I would check with him, of course."

https://www.youtube.com/watch?v=UGrwUEDAqSQ