Balkinization: How to work around the election-inauguration hiatus

How to work around the election-inauguration hiatus

Sandy Levinson

In the modern world, there is really very little to be said for the 10-week hiatus between election and inauguration of the new president, especially if the newly elected president ran on a platform significantly in opposition to the incumbent. Decisions on foreign and military policy and, as we have seen this past week, even domestic policies, must sometimes be made quickly, and it is essential that the president making them (or trying to persuade others to accept them) have various kinds of authority, including the political authority that comes from popular approval in a just-concluded election. This concern was present in, say, 1968-69, 1980-81, 1992093, and 2000-2001, but not in 1988-89, where George H.W. Bush's election was in no way a repudiation of the Reagan Administration. It will certainly be present after November 4, especially if, as seems now widely to be expected, Obama wins a clear electoral vote (and, presumably, popular vote mandate).

So what can be done, without a constitutional amendment, to cure this particular deficiency in our Constitution? In one sense, it is surprisingly easy: As Norman Ornstein and Thomas Mann point out in their book The Broken Branch, there is no constitutional requirement that the Speaker of the House be a member of the House. So the "putting country first" response to Obama's election (and, under some scenarios, even McCain's election), especially if there is no real doubt about the electoral vote result, is for Nancy Pelosi to "resign" immediately and the House to select the person We the People have chosen as the new President as the new Speaker of the House. Then, putting country first, George W. Bush and Richard Cheney simultaneously submit their resignations, leaving both the presidency and vice presidency vacant. Under the Succession in Office Act, next in line is the Speaker. QED. Speaker of the House Obama (or McCain), who will, of course, have resigned his Senate seat in the interim, will succeed to the presidency immediately and then take the oath for the full four-year term on January 20, as the unamended Constitution provides.

There is one embarrassment in my suggesting this solution, however:

Akhil Reed Amar and Vikram Amar argued in a brilliant Stanford Law Review article several years ago that the Succession in Office Act is unconstitutional, that the successor must be an "officer" of the United States and that members of Congress are not "officers." More serious, I think, is their point that the Speaker and President pro tem of the Senate shouldn't be in the succession because that creates an incentive for an unscrupulous Speaker, particularly of the opposite political party, to mount a campaign to impeach the sitting president, especially if there is no vice president, in order to affect a party coup. I think there is much to this argument. I would strongly prefer that the succession be in the Cabinet, as was the case prior to 1947, when the current SOA was passed. But, to paraphrase Donald Rumsfeld, you work with the SOA in have, not the one you would prefer to have.

Some of you may remember that Sen. Fulbright suggested that Harry Truman name a Republican as Secretary of State and then resign, following the Republican takeover of Congress in 1946, which earned Truman's immortal reference to the Arkansas senator as "Sen. Halfbright." I don't think my suggestion is really the same as Fulbright's, for the obvious reason that a number of factors might explain the takeover of the Congress by the opposite party besides opposition to the president, whereas a presidential election, for all of its own ambiguities, is "crisper" in this regard. Also, we're not talking about a sitting president giving up two years of his term, as Fulbright was, but, rather, the last ten weeks, for the good of the country in order to make sure that there is both a legal and politically legitimate and "authoritative" government in perhaps perilous times. (Obviously, I would also support some mechanism to fire a president in mid-term, but my proposal is entirely independent of accepting any such view.)

Unconstitutional or not, the Succession in Office Act is what we have, and it does supply a solution to the problem of what might be termed the "dead-duck presidency." One might imagine that Bush and Chency would resist the idea, but on what grounds, other than a sheer desire to remain in (legal) power regardless of what would best serve the national interest? (Obviously, one would expect McCain and Obama to promise to honor this "precedent" should they lose in 2012, so that a new "constitutional convention" in the British sense would avoid the need for even a constitutional amendment.)

Posted 8:37 PM by Sandy Levinson [link]

Comments:

Unless I'm missing something, wouldn't it be easiest for the VP to resign and then have the new President get appointed into that position with the confirmation of both houses.

# posted by

Greg Sanders : 10:13 PM

I don't think this problem calls for such a Rube Goldberg solution. Changing the inauguration date would probably not be all that controversial or partisan, and might well be passed as easily as several of the recent "technical" amendments.

# posted by

Mark Field : 11:02 PM

It would also work for the VP to resign and for both houses quickly to confirm the president-elect as the new VP. That has the virtue of removing the constitutional difficulty with the SOA. I treat Greg's post as an extremely "friendly amendment," since it seems to accept the basic premise.

I think that Mark's suggestion that an amendment would be easy runs into the problem of the electoral college, since someone would undoubtedly point out that moving up the date significantly (say to November 15 or Dec. 1) would be impossible to meet if we were faced with another 2000 or no candidate won a majority of the electoral vote, as came very near to happening in 1948 and 1968. Obviously, I'm all for getting rid of the EC, but if there's one thing we know, it is that that has proved impossible even though a majority of the country has wanted to do so since the '60s.

# posted by

Sandy Levinson : 11:33 PM

Changing the inauguration date would probably not be all that controversial or partisan

I don't know. The January 20th inauguration is a part of our civic religion, like November elections and quadrennial debates. Whichever party's in power would oppose it and there's not really a pressing demand for the inauguration to be moved up, outside of the world of law blogs and "January 20, 2009 - George Bush will be history" bumper stickers. Not to say that it's a bad idea, but I'd bet against its happening in the next 25 years, at least.

# posted by

Asher : 2:21 AM

The sheer fantasy element is that Bush and/or Cheney might choose to act out of motivation for the good of the nation, when to all existing evidence they have shown no trace of such motivation.

You might as well propose an end to the War on Terror that begins with Osama bin Laden and the rest of Al Qaeda all coming forward of their own free will and peaceably laying down their weapons, never to make war again. Marvelous, but implausible.

# posted by

Pyre : 7:27 AM

I continue to disagree with Sandy that the interregnum lacks purpose. I have previously replied about its usefulness for resolving election disputes and for assembling a new government. Today I will focus on the ability of the president-elect to manage a crisis.

Franklin Roosevelt refused to work with Herbert Hoover during the much longer interregnum before his first time. Why is that sensible?

(1) An election that brings in a president of another party is also likely to change the balance of power in Congress in the new presdient's favor. Why should a new president waste his honeymoon fighting a lame duck, more oppositional Congress?

(2) An election often means a break with the past, at least in some areas of government, and the new president needs to replace the officials responsible. For example, one of the two recent WaPo books on the Iraq war says that before the 2004 election, one option that was considered was to put Gens. Petreus and Odierno in charge because they were reliably pro-war and would be a "poison pill" for any Kerry Administration.

(3) Any involvement would allow the outgoing government to set the agenda for the incoming government. Suppose that the Bush Administration were to invite the president-elect to a meeting to discuss the bombing of Iran. Maybe the new president doesn't or shouldn't want to start off his presidency by bombing Iraq. This is like the advanced stage of planning for the Bay of Pigs that Kennedy inherited; maybe he should have focused on whether rather than how the invasion would be carried out. Returning to Roosevelt, my recollection is that Hoover wanted to raise taxes to balance the federal budget, and Roosevelt also wanted to balance the federal budget. But when he took office, the bank collapse and unemployment convinced him that balancing the budget was not the most important thing to do.

(4) It is pretty well accepted that the people needed to run a government are not the same ones needed to run a campaign. We do not have a system like Britain's where there are shadow ministries; increasingly, the president is elected on his own personality, independent of the congressional wing of the party. It is absolutely necessary that the new president get out of campaigning mode and into governing mode. The agenda for the honeymoon year, a budget to replace that prepared by the outgoing administration, and a State of the Union message await the new president urgently.

# posted by

Anonymous : 8:51 AM

I think that Mark's suggestion that an amendment would be easy runs into the problem of the electoral college, since someone would undoubtedly point out that moving up the date significantly (say to November 15 or Dec. 1) would be impossible to meet if we were faced with another 2000 or no candidate won a majority of the electoral vote, as came very near to happening in 1948 and 1968.

I agree that we'd need a voting system which was quick and reliable before we could change the inauguration day. I think that if we did have such a system, we could arrange for a quicker transition even if we kept the EC.

# posted by

Mark Field : 3:31 PM

Enough of this trivia. How does such a broken constitutional system deal with the burning issue of established White House cats?

# posted by

James Wimberley : 4:25 PM