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On the Presidential Succession Act and “Officers”

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At Volokh Conspiracy, Josh Blackman: Do Professors Akhil and Vikram Amar Still Think the Presidential Succession Act is Unconstitutional?  From the introduction:

In an influential 1995 article, Professors Akhil and Vikram Amar argued that the 1947 Presidential Succession Act was unconstitutional. This law places the Speaker of the House next in line immediately after the Vice President. The Amars contended that this statute was unconstitutional. Their analysis began with the text of the Succession Clause. It 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.”

If the Speaker is an “Officer,” for purposes of the Succession Clause, then there is no problem. The Constitution expressly empowers Congress to place “Officers” in the line of succession. If the Speaker is not an “Officer” for purposes of the Succession Clause, then the Presidential Succession Act is unconstitutional.

The Amars’ conclusion is that the Speaker is not an “Officer” because the Speaker is not an “officer of the United States” in the meaning of other constitutional clauses.  but in contrast, Professor Blackman continues:

In November 2019, Seth Barrett Tillman and I explained our disagreement with the Amars in The Atlantic. (We wrote a much more detailed article on this topic that will be published in due course). Tillman has also unearthed an article from 1792 that casts doubt on a critical piece of evidence the Amars relied upon.

I hope the Amars can answer a simple question. Who is in line for the Presidency after Vice Pence: Speaker Pelosi or Secretary of State Mike Pompeo? In our view, Speaker Pelosi would become President.

An interesting originalist methodological questions arises from this dispute.  According to the first volume of David Currie’s The Constitution in Congress (pp. 139-144), this exact issue arose in  connection with the first presidential succession legislation (passed in 1792).  That law placed the president pro tempore of the Senate as next in line behind the Vice President.  As Currie recounts, various congressmen objected that the president pro tempore was not an “officer” in the meaning of the succession clause.  But Congress overrode these objections and enacted the law (which President Washington signed).  My originalist methodological question is: how does this history weigh in assessing the original meaning of the succession clause?

On one hand, it shows that the Amars’ argument is a plausible account, not a modernist stretch of the language: their argument was actually made in the immediate post-ratification period.  But on the other hand, their argument was rejected in that era (including by Washington, who in addition to being a bit of a constitutional stickler might be thought to have had a personal interest on the other side, as it would have allowed the executive branch to control the succession).

My tentative view on the merits is, without necessarily adopting all of the Blackman/Tillman argument, that the Amar argument isn’t compelled by the text.  The succession clause says “officer” but it does not say “officer of the United States.”  So even if the Speaker and the president pro tempore of the Senate are not “officers of the United States,” they still are plausibly  “officers” (and are referred to as such in Article 1, Secs. 2 & 3.).  That Congress in 1792 accepted this view — in the face of an express constitutional argument to the contrary — seems further evidence it is the right one.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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