Looking for a story, SOL preferably, that involves a "designated survivor" for the U.S. presidency after some catastrophic event. Even better would be a story in which no designated survivor lives - and the effort to figure out who IS the new president - maybe the mayor of Hoboken, or some other unlikely place (does Hoboken even have a mayor?)
If something happened that exhausted the list from the Presidential Succession act, they would probably go through all the rest of the cabinet and sitting members of Congress before looking beyond the federal government.
At that point either the entire federal government is gone and the rest of the country is to busy with immediate survival to care, or it would probably go to an emergency election.
If something happened that exhausted the list from the Presidential Succession act, they would probably go through all the rest of the cabinet and sitting members of Congress before looking beyond the federal government.
Some legal scholars have argued that it would never get to a cabinet member as even a single surviving member of the House could 'chuse' himself as Speaker and be President.
That said, I don't think the Constitution permits a member of the Legislative Branch to become President, the Presidental Succesion Act's declarations to the contrary notwithstanding.
That said, I don't think the Constitution permits a member of the Legislative Branch to become President
I don't think the Constitution says anything about it one way or the other. The only exception would be if a particular successor does not meet the constitutional qualifications spelled out for the President.
If you feel otherwise, feel free to quote the specific clause in the constitution you feel would prohibit that.
ETA: The one limitation is that the person couldn't hold both positions at the same time, so a Speaker of the House who accepts becoming President by succession would have to give up his/her House seat.
But that same limitation would apply to the VP or any member of the Cabinet succeeding the President. They can't hold both positions at the same time.
I don't think the Constitution says anything about it one way or the other. The only exception would be if a particular successor does not meet the constitutional qualifications spelled out for the President.
Actually, it does:
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.
Members of the Legislative Branch are not 'Officers' of the United States. Those are individuals duly appointed by the President and confirmed by the US Senate. Neither the President Pro Tempore of the Senate, nor Speaker of the House, are 'Officers' and thus do not qualify to be in the line of succession.
I think separation of powers comes into effect here.
This is one of the list ofmany Constitutional Conundrums which would have to play out in court.
This is one of the list ofmany Constitutional Conundrums which would have to play out in court.
There is zero chance of that ever happening.
https://www.law.cornell.edu/wex/political_question_doctrine
If it happens and someone tries to challenge it in courts, the federal courts will refuse to even consider it.
If it happens and someone tries to challenge it in courts, the federal courts will refuse to even consider it.
I give you Bush v Gore where there was a complete solution found in the Constitution and the court took the case and decided it, despite it being a political question.
In this case, there is a clear answer in the Constitution. The question is whether SCOTUS would actually enforce it (they play fast and loose all the time, so who knows)?
I give you Bush v Gore where there was a complete solution found in the Constitution and the court took the case and decided it, despite it being a political question.
Election related cases are not generally put under the political question doctrine.
Election related cases are not generally put under the political question doctrine.
That's probably to protect the independence of the legislature from the judiciary.
The UK judiciary had no such compunction about interfering in Brexit, but they've been making a power grab in recent years.
AJ
Election related cases are not generally put under the political question doctrine.
Unfortunately, in Bush v Gore there was a specific Constitutional process that the Court refused to recognize. Electing the President is actually a political question, and there is a conflict resolution solution in the very document those justices swore to uphold.
Unfortunately, in Bush v Gore there was a specific Constitutional process that the Court refused to recognize.
No.
The procedure for the US Congress counting the electoral college ballots was in no way relevant to the question before the court in Bush v Gore which was about how the ballots from the regular vote were being counted in Florida.
And again, issues about ballot counting procedures (including recounts) have always been considered justicable.
No.
The procedure for the US Congress counting the electoral college ballots was in no way relevant to the question before the court in Bush v Gore which was about how the ballots from the regular vote were being counted in Florida.
Yes. If SCOTUS had left it to the political process, the Florida Legislature would have exercised its authority to submit electoral ballots. If those were challenged, then there are procedures in the Constitution to resolve that challenge.
There is literally nothing in the Constitution that gives any citizen the right to vote in a Presidential election. If the Florida courts messed up the count, the legislature could by simply passing legislation, appoint whichever electors it chose, and could in fact, ignore the popular 'vote' (which isn't actually a thing).
There is literally nothing in the Constitution that gives any citizen the right to vote in a Presidential election.
15A, 19A, 26A.
The states decided to choose Electors by a vote of the People. People have a right to vote in those elections and to have their ballots counted fairly.
Given the above voting rights amendments and the voting rights act, it is not certain that the states could in fact legally reverse the decision to choose electors by election at this pointt
If the Florida courts messed up the count, the legislature could by simply passing legislation, appoint whichever electors it chose, and could in fact, ignore the popular 'vote' (which isn't actually a thing).
Assuming for the sake of argument that such a maneuver by a state legislature would be legal (doubtful*), if the Florida legislature had taken such action prior to SCOTUS hearing Bush v Gore it would have mooted the case, but they didn't do that. Nor did they do it after.
Also the National Popular Vote isn't a thing. The state level popular vote is very much a legally valid and meaningful thing.
*It might be legal/constitutional if they decided to end presidential elections and have the state legislature appoint the electors before holding an election for that purpose. It is very doubtful that voiding an election that's already happened would be either legal or constitutional.
Given the above voting rights amendments and the voting rights act, it is not certain that the states could in fact legally reverse the decision to choose electors by election at this pointt
The choice of electors falls to the state legislature. Nothing has ever changed that.
A state legislature may change that method at any time, as the Constitution expressly reserves to them the choice of electors, and, as has been ruled by SCOTUS in the past, no act of a legislature can bind a future legislature to any specific action.
There is no such thing as 'popular vote' for President,. It's, at best, an opinion poll. Electors cannot (despite SCOTUS ignoring the Constitution and their own precedent) be required to vote for any specific candidate. Electors are elected to a federal office, just as Senators are, and as such, the state cannot require them to vote for a specific candidate any more than they could require Senators to vote a specific way.
SCOTUS gets it wrong all the time.
as the Constitution expressly reserves to them the choice of electors,
No.
The raw text of the constitution does NOT reserve the choice of electors to the state legislatures.
What is expressly reserved to the state legislatures in the constitution is choosing the method by which the electors are chosen.
These two things are NOT the same.
They chose to have them elected by (state level)popular vote.
Could they change that?
Probably, if they do it between elections, but there would be a huge political cost to doing so at this point.
During a presidential election cycle while the ballots are being counted? Almost certainly not.
SCOTUS gets it wrong all the time.
True as a general principle, the justices are human after all.
However, that you think they got some particular thing wrong is dispositive of nothing.
What is expressly reserved to the state legislatures in the constitution is choosing the method by which the electors are chosen.
These two things are NOT the same.
Same practical effect — they can change the process, and even ignore the so-called 'popular vote'. Heck, that's a basic principle behind the 'National Popular Vote Compact'.
The NPVC does violence to the Constitution and seeks to undo a very specific electoral theory enshrined (not allowing the most populous states to dictate who becomes President) without amending the Constitution.
The EC is a feature, not a bug, and the EC is a creature of the State Legislatures.
Same practical effect — they can change the process
The only disagreement between us here is over timing. You seem to think they can change the process in the middle of an election. No, it doesn't work that way.
The NPVC does violence to the Constitution
Agreed.
You're missing the fact that the Florida Supreme court was the one changing the election laws.
It was not a political question at that time at all. It was whether the voting procedures complied with constitutional requirements.
You're missing the fact that the Florida Supreme court was the one changing the election laws.
Not at all. What I'm saying is that there was a solution to the problem found directly in the Constitution. In a a dispute over how the electors are chosen, the legislature is, per the Constitution, the final say for the state. At that point, the House and Senate take over and determine if the electors are validly appointed. If they are not, then that slate is ignored. If no candidate reaches the 'magic' number, then the President is elected by the House (voting by delegation, with on e vote per state) ad the Vice President by the Senate (with one vote per Senator).
SCOTUS could (and should) have let the FL Legislature and Congress work it out. The result would have been the same, and SCOTUS would have avoided answering what was, in the end, a political question.
That was not the issue before the Court. The issue presented was whether the equal protection rights of the voters were violated by the ruling of the FL Courts. Whether giving a higher value to some voters over others was permissible under the Constitution.
The FL legislators were not directed to do anything by the Supremes.
Actually the FL Courts were the ones who ignored the legislature's constitutional powers by changing the rules of the election established by the legislature.
Actually the FL Courts were the ones who ignored the legislature's constitutional powers by changing the rules of the election established by the legislature.
Something the legislature could remedy with their delegated powers. No FL court could prevent the State Legislature from submitting whatever slate of electors they preferred.
Again you simply do not understand the issues litigated. They were legal issues to be decided by the judiciary, not political issues.
Again you simply do not understand the issues litigated. They were legal issues to be decided by the judiciary, not political issues.
Again you simply do not understand the issues litigated. They were legal issues to be decided by the judiciary, not political issues.
You are completely missing the point that there were political solutions to the problem and SCOTUS should have let the political process work itself out.
The best solution would have been for SCOTUS to say that Gore had no standing to sue.
there were political solutions to the problem and SCOTUS should have let the political process work itself out.
Irrelevant. The question before the court was a legal issue and it is their job to answer those issues whether there are potential political solutions or not.
The best solution would have been for SCOTUS to say that Gore had no standing to sue.
1. Gore isn't the one who brought the case to the federal courts.
2. Candidates have clear standing for challenges to vote counting procedures.
You would have them ignore one area of the law because you think they ignored a different area.
There was no "political solution" to the issues presented in Bush v Gore. Those issues were questions of equal protection and time. If the FL Supreme Court descision was not overturned, the legislature would have no ability to act under FL law. Any attempt to certify a slate of electors would have also been blocked by the FL court.
Unless you were willing to disenfranchise the people of FL (the intent of the Gore team) there was nothing to be done other than what the court did.
Some legal scholars have argued that it would never get to a cabinet member as even a single surviving member of the House could 'chuse' himself as Speaker and be President.
Well, what if the Speaker of the House doesn't meet the constitutional requirements to be President? They would get passed over.
The other possibility, especially if some major disaster has killed al but one member of the House, would be that the Speaker declines the position (in the case of the disaster so that the house isn't left completely vacant).
Well, what if the Speaker of the House doesn't meet the constitutional requirements to be President? They would get passed over.
Possibly. Some legal scholars think that if the House were to elect a new Speaker before the cabinet member was sworn in, they'd then be next in line for succession.
Again, not saying this would happen, but it's a Constitutional Conundrum.
IfI may interject:- John Ringo touches on this subject in the "Black Tide Rising" series of books, starting with"Under A graveyard Sky"
The disaster puts the 145th(?) in the line of sucsession as the National Continuety Co-ordinator.
The books are "dead tree" I am afraid, available from all the usual retailers, including (naked plug) BAEN.
I found them a jolly good read
Either way, she was a looney tunes.
He was Under Deputy Secretary of Defence Frank Galloway. (126th)
Are you thinking of Elizabeth Sovereign Secretary of Education (13th in line) ?
Are you thinking of Elizabeth Sovereign Secretary of Education (13th in line) ?
Yeah, the one that told everyone to stop fighting.
ETA: I misread things things, so I deleted part of my previous reply.
The books are "dead tree" I am afraid
Baen will happily sell you eBook versions (without DRM).
HM.
My understanding is that after the Speaker of the HOuse the succession goes through the members of the Cabinet in order of department creation. There is a story here where said disaster occurs, with the only survivor the Secretary of Education, just recently appointed. As part of the disaster, almost all the members of Congress are killed as well. In addition to said disaster, she inherits a major financial crisis as several countries are on the verge of defaulting on international loans. And as a kicker, there is a plot to assassinate her as well.
You missed the President Pro Tempore of the Senate.
The Order of Presidential Succession is
1. The Vice-President
2. The Speaker of the House
3. The President Pro Tempore of the Senate
4. The order of the Cabinet secretaries in the order of when their departments (or the department of which their department is the successor) were created.
You missed the President Pro Tempore of the Senate.
Am I the only one who read the book, 'The Man?'
It gets a mention in The Doomsday Virus - Part 1 by Koala, according to Advanced Search.
I vaguely remember another occurrence when, IIRC, an evil US government got cleansed by the good guys and it was up to an extremely junior politician to sue for peace. Unfortunately Title and Author are beyond me :-(
AJ
Going Forward 55 - What the Future May Bring
In an alternative timeline, the world teeters on the edge of complete world wide economic collapse. A terrorist attack wipes out the line of succession to the presidency except for the new Secretary of Education. She becomes president, totally unprepared and facing the most serious crisis in the history of the country. Read how Kathleen Lehrer discovers What the Future May Bring. Minimal sex will not appear until late in the story.
Not sol, but Executive Orders by Tom Clancy has such a scenario, when the capitol is blown up and the protagonist must keep the country going. Excellent book, and the one before it as well, Debt of Honor.
A friend at work turned me on to Tom Clancy, and was telling me about Executive Orders before I read it. The thing I remember is his saying he wondered when someone would actually try it. This was way before 9/11.
To take out the capitol building and the White House in one explosion you'd need a nuke or something on the level of MOAB.
Then you run into the problem that POTUS, the VP, or one of the other people on the succession list, mostly one of the cabinet members is always out of town, to prevent exactly that sort of thing.
I think he's talking about a suicide attacker flying an airplane into the Capitol (right before the main-character was supposed to be sworn in as VP, thus killing all but one cabinet-member and obviously the main-character). And yeah, that certainly gave me 9/11 vibes.
I think he's talking about a suicide attacker flying an airplane into the Capitol
No, if you go up a couple more comments they were talking about blowing up the capitol building, not a 9/11 style kamikaze attack with an airplane.
The swearing in ceremony would actually not be an ideal time for such an attack either way.
https://www.inaugural.senate.gov/vice-presidents-swearing-in-ceremony/
The location of the Vice President's oath-taking ceremony has also changed since John Adams became Vice President in 1789. Today, the Vice President recites the oath on the Inaugural platform constructed on the West Front of the U.S. Capitol, prior to the swearing-in of the President. Until 1937, most Vice Presidents took the oath of office in the Senate chamber, prior to the President's Swearing-In Ceremony. This made the Vice President's Swearing-In Ceremony distinct and separate from the President's.
The president's swearing is usually done outdoors, on the capitol grounds, but not actually in the capitol building.
https://www.inaugural.senate.gov/presidents-swearing-in-ceremony/
Also, the key players wouldn't be at the capitol until literally minutes before the swearing in.
https://www.inaugural.senate.gov/procession-to-the-capitol/
By tradition, members of the Joint Congressional Committee on Inaugural Ceremonies travel to the White House to escort the President-elect, Vice President-elect, and their spouses to the Capitol for the Inaugural Ceremonies. After a brief meeting, the President-elect and the outgoing President will then proceed together to the Capitol for the Swearing-In Ceremonies. This tradition has endured, with few exceptions, since 1837, when Martin Van Buren and Andrew Jackson rode together in a carriage made from wood taken from the U.S.S. Constitution. The Vice President and Vice President-elect will follow, as will family members, cabinet members, and members of the JCCIC.
Speaker of the House is an elected position. The only way a House member could move themselves up to that position would be if they were the only member left, or if the remaining membership quickly elected them.
Speaker of the House is an elected position.
Two things:
1. Congress is authorized to 'chuse for themselves a Speaker' and no provisions are made for how that is done.
2. Congress is authorized to make their own rules, and again, there no no provisions made for how that is done.
A Constitutional Conundrum.
There was a Gamma World choose your own adventure book in the 80s in which your character had worked as a dog catcher in a small town and managed to survive World War III and go into suspended animation. When he awoke who knows how long later the military computers declared him President because he was a surviving government official.
It's possible that the Constitutional accuracy of that story was not what you would term "rigorous."
It's possible that the Constitutional accuracy of that story was not what you would term "rigorous."
The Constitution says 'Officer' of the United States, and the local dog catcher would not qualify. With no President to appoint him, he couldn't qualify even if he wanted to. Congress has no authority to place anyone in the line of succession except 'Officers' of the United States (which the courts have said consist of individuals appointed by the President and confirmed by the US Senate).
The Constitution says 'Officer' of the United States, and the local dog catcher would not qualify.
As a digression, that's an interesting type of problem in space operas. If the rules say the most senior officer takes command of the spaceship if all superiors have been incapacitated, what happens if the only person left alive is a totally unqualified garbage disposal trainee? And there are no handwaviums to quickly download all the necessary skills into said garbage disposal trainee's brain.
AJ
How could this play out?
If at some point after Jan 6, 2023, with likely Republican Control of the House/Senate, Biden and Harris are both incapacitated in some way (either illness, death, or removal from office via the 25th Amendment or impeachment).
At that point, when the option is to turn over the entire US Government to the Republicans (despite the previous Presidential Election results), you might see Secretary of State Blinken (assuming he's still there, and not otherwise disqualified) sue. Not sure anyone else would have standing to sue.
Sorry for my cynicism, but what makes you believe they give a damn about those legal niceties? Sue?
If they can successfully tromp on the will of the people by deciding elections before they are held, what makes you believe they will respect the right to sue or the decision of any court that is not one of their own? As I recall one of the first acts by 45 was to try to remove all federal district prosecutors. What was that but an attack on the US federal judicial process?
Sorry. At my age my temper gets away from me occasionally. Dentists across the nation must be doing a landslide business with all the tooth-grinding that is going on.
As I recall one of the first acts by 45 was to try to remove all federal district prosecutors. What was that but an attack on the US federal judicial process?
I'd hate for you to have done ANY research on this:
By tradition, all U.S. Attorneys are asked to resign at the start of a new administration. The new President may elect to keep or remove any U.S. Attorney. They are traditionally replaced collectively only at the start of a new White House administration. U.S. Attorneys hold a political office, in which the President nominates candidates to office and the Senate confirms, and consequently, they serve at the pleasure of the President.
Actually, that was President Trump following precedent. Clinton replaced all 93 federal prosecutors, Bush got grief because of the wording of the Patriot Act about doing it, then Obama replaced all of Bush' appointees. The only person you should direct your temper at is yourself, for failing to actually check things out yourself.
Does it make it right if others did it too? Yes, they all serve at the pleasure of the President, but how many of them were investigating those presidents before they were removed?
Does it make it right if others did it too?
It's not a matter of justifying wrong doing by saying others did it too.
It isn't anything wrong. It's standard procedure for every new administration going back to before the civil war.
but how many of them were investigating those presidents before they were removed?
Again, as long standing standard procedures all US Attorneys are asked to resign at the start of a new administration.
Maybe if Trump had retained all the serving US Attorneys except the ones directly involved in investigating cases involving Trump you would have a case for wrong doing, but that isn't what happened.
Yes, the replacement of District Court prosecutors is at the president's pleasure, but before 45 it was generally a gradual process. Incumbents submitted pro forma resignations to be accepted or rejected by the newly elected presidents. Even those attorneys who were to be replaced, but who were actively preparing cases, any cases, served until the process was complete. They were not part of an overnight mass firing of 45 or more that disregarded the status of the cases with which they were involved. It was not the so-long, goodbye and do not come in tomorrow that 45 demanded.
As I recall, Clinton and Obama followed an orderly procedure and had replacement personnel on line. They did not leave a mass of vacancies. You are correct, I do need go back and re-read my files. It helps to refresh my memory.
Let's get back on track. The issue was whether Blinken could successfully sue to head the administration if he were the last executive officer eligible. I am sorry for my cynicism, but isn't it more than optimistic to believe the judicial system would survive under those circumstances?
It was not the so-long, goodbye and do not come in tomorrow that 45 demanded.
It still doesn't advance your argument, since he wasn't specifically targeting US Attorneys involved in cases involving him.
I am sorry for my cynicism, but isn't it more than optimistic to believe the judicial system would survive under those circumstances?
That's a valid point, but it depends on how you get there.
If you are positing a full scale military attack or some kind of natural disaster wiping out most of DC, yes it would be odd for most of the top level of the judicial system to survive.
On the other hand series of impeachments against the President, VP and Most of the Cabinet officers would certainly leave the judicial system intact, as would a series of targeted assassinations aimed at the top level of the executive branch.
But again, in my opinion, even if you got there with the judicial system intact, they wouldn't hear the case, it would be ruled non-justicable under the political question doctrine.
I wish they had preserved that doctrine when Bush v Gore came up.
No, there is long standing precedent that the political question doctrine doesn't apply to election/vote counting cases. They didn't reject it, or overturn it or ignore it. It didn't apply to Bush v Gore.
The final decision in Bush v. Gore came directly from the previous decision in the case. In the earlier decision the Court ruled that the Florida Supreme Court couldn't order a piecemeal recounting of ballots under different methods and standards. That was decided 7-2. The FL Court should have anticipated that result based upon it ignoring the previous unanimous decision in Bush v Palm Beach County and acting contrary its holding.
The final decision was that there was simply not time to devise a uniform method of counting the ballots and completing the recount in the 4 days remaining.
The House, in exercising its constitutional responsibility still had to accept those electors as valid and was free to reject them. No power was taken from the House, nor was anything done ignoring the Constitution.
The Supremes, contrary to false narratives did not give the election to Bush.
A slight bit of clarification to what I previously wrote:
"The order of succession specifies that the office passes to the vice president; if the vice presidency is simultaneously vacant, or if the vice president is also incapacitated, the powers and duties of the presidency pass to the speaker of the House of Representatives, president pro tempore of the Senate, and then Cabinet secretaries, depending on eligibility. "
Notice the phrase "powers and duties." Anyone below the Vice President becomes an 'acting President,' not the President in fact. While it wasn't clear in the Wiki article, it sounds like the way would be open to actually hold a Presidential election if both the President and Vice President are deceased or otherwise unable to resume their offices till the end of their term. The Wiki article I got this from clarified a lot for me, and discussed several 'gray' areas in the existing arrangement, with suggestions on how to correct things.
Which raises the question: Assuming my conjecture proves to be true, what is to stop someone from arranging for the assassination of both the President and Vice President, and then winning the special election and becoming President. I am assuming that if the above could be proved they could then be impeached, and the whole process starts over again. That should guarantee employment for a goodly number of lawyers, reporters, and political commentators.
goodly number of lawyers, reporters, and political commentators.
Why use "good" to describe them? Even "goodly" is probably a stretch.
"What does mean goodly?
1 : pleasantly attractive. 2 : significantly large : considerable a goodly number.
Goodly Definition & Meaning - Merriam-Websterhttps://www.merriam-webster.com ' dictionary ' goodly
goodly number of lawyers, reporters, and political commentators.
None of whom are good.