Balkinization: A fine proposal defeated by (among other things) the text of the Constitution

A fine proposal defeated by (among other things) the text of the Constitution

Sandy Levinson

Wisconsin history professor John Milton Cooper has a column in today's NYTimes entitled "The Pause That Depresses," which criticizes the hiatus between election and inauguration. Cooper, a noted Wilson scholar (who taught my wife a fine course in American history years ago at Wellesley), notes that Woodrow Wilson had resolved, had he lost the election of 1916 to Charles Evans Hughes, which turned on the California vote, to name Hughes Secretary of State and then, together with his Vice President, Thomas Marshall, resign so that Hughes could take office immediately. That, of course, proved unnecessary when Wilson carried California by fewer than 4000 votes. Cooper believes that Wilson would have been acting in the public interest and believes as well that we should today try to achieve a solution to the overly-long hiatus. (Obviously, George W. Bush and Dick Cheney are less public spirited than Woodrow Wilson, but that's another matter. Also, for what it's worth, Cooper doesn't make mention of Wilson's scandalous resolve to remain President following his debilitating stroke in October 1919 or his delusional desire to be drafted for a third term in 1920.)

Cooper concludes his column as follows:

Our current interregnum and its predecessor in 1933 have not been the only peril-filled transfers of power in our history — 1861 was the scariest of them all — and there ought to be a way to avoid or at least shorten such anxious passages. It is worth asking whether Woodrow Wilson’s idea could be wisely applied now.

The present law of succession appears to rule it out because the speaker of the House, not the secretary of state, is now third in line. But this line of succession is not graven in stone, much less embedded in the Constitution. Congress has changed it several times, most notably at the end of World War II, when the succession shifted to include more elected officials, but as recently as 2005, when Congress designated the secretary of homeland security as 18th in line. In fact, it is not even necessary to change the order, only to add a provision — a version of Wilson’s plan — allowing a president to resign after a successor is elected and have that successor take office immediately.

There’s no risk this would become standard practice, because outgoing presidents rarely want to leave before their terms expire. But we still need a procedure for the quicker transition of power in troubled times like these.

I obviously agree with Cooper's sentiments, but, alas, his suggestion betrays a certain lack of knowledge of the constitutional text (assuming one wants to take it seriously). First of all, if one has a public-spirited president who is willing to resign (along with his/her vice president), one really doesn't need to do much tinkering. Even with the present Succession in Office Act (and assuming, for sake of argument, that it's constitutional, which Akhil and Vikram Amar deny for reasons to be elaborated presently), one can work around the Speaker problem simply by having the current Speaker "resign," to be replaced by the President-elect. One of the things I learned from reading Tom Mann's and Norman Ornstein's The Broken Branch is that the Speaker, legally speaking, need not be a member of the House of Representatives, so there is nothing to bar the House from naming the president elect, who would then take office upon the resignation of the sitting President and Vice President even as the "former" Speaker would be re-elected to the office. If one agrees that the Succession in Office Act is either unconstitutional or simply a bad idea (as I do), then the solution is to revert to the pre-1947 act and make the Secretary of State next in line after the VP, which allows the Wilsonian solution.

So far, so good. The problem comes with Cooper's suggestion that the Congress amend the president-elect to make him/her next in line after the VP. The reason found in Article II,
Section One, 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. (emphasis added)

One of the major parts of the Amars' argument as to the unconstitutionality of the Succession in Office Act is that neither the Speaker of the House nor the President pro Tem of the Senate is an "officer"; therefore, they are ineligible to be named in the line of succession. Even if one rejects this argument (though I believe they make their case convincingly), there is even less of an argument that the president-elect is an "officer." The most you can say is that he is a "potential" officer; the very point of inauguration, after all, is to engage in the civil religious rite of investiture. Until high noon on January 20, 2009, Barack Obama is just another citizen, with no more legal authority than any reader of this posting. After noon, he is, at least formally, the most powerful individual in America precisely because he will have become an "officer" of the United States.

So Cooper's proposal, which is motivated by concerns that I obsessively share, is defective in two important respects: 1) It requires the incumbents to be unusually self-effacing and willing to give up power to political enemies; and 2) its particular solution is unconstitutional. But at least he recognizes that something should be done. This puts him steps ahead of almost all of the punditry and editorial writers.

Posted 2:40 PM by Sandy Levinson [link]

Comments:

Why does the author say that George Bush and Dick Cheney are less public-spirited than Woodrow Wilson? This left-wing habit of insisting that those who disagree with you politically are not just wrong, but evil, really degrades our public discourse.

# posted by

sean : 4:08 PM

The answer to Sean's snarky question seems self-evident: Woodrow Wilson was apparently willing to quite the presidency had he been repudiated by the American public in the 1916 election. George W. Bush and Dick Cheney have no such impulses. They will hang on to their legal powers until high noon on January 20, 2009 even though they are the most disapproved-of president and vice president in the history of American polling. I suppose that the answer to my objection is that they genuinely fear the changes to be brought by the Obama Administration and that, therefore, they are really acting in "the public interest" by hanging on to power for dear life. Thay may well be their perception, though I have no doubt that Wilson, like Bush infected with a messianic personality, also deemed himself a far better steward of the public than Charles Evans Hughes.

In any event, I hope that we can all agree that Cooper's suggestion depends for its cogency on the willingness of incumbents to resign and thus voluntarily forego their otherwise constitutionally-guaranteed last days in office.

# posted by

Sandy Levinson : 4:19 PM

It seems to me that, at least according to the Amars' argument, it would be more constitutional to amend the Succession Act to include the President-Elect. The amendment only needs to establish the President-Elect as an officer of the Executive Branch. That office would not even need Senate confirmation, as long the legislation clearly spells out that the winner of the electoral college vote is the only person qualified for the job.

We could even move up the Electoral College vote to a week after the election (gotta give Alaska time to collect all those votes from remote areas).

# posted by

William Ockham : 5:00 PM

We are a government of laws, not of men. This message has been drilled in us from early in the study of law. But the application of laws (including well intended laws) can sometimes be manipulated by men in unanticipated ways. Some men hunt for loopholes for personal benefit. Any amendment should be bulletproof.

# posted by

Shag from Brookline : 5:07 PM

Ah, so what Prof. Levinson meant to say is that, sadly, Harry Truman, Lyndon Johnson and Jimmy Carter were less public-spirited than Woodrow Wilson, and have established the regrettable precedent that, even in times of war and economic turmoil, the president remains in office until the end of his term, and that George Bush will be following the precedent of those loutish and unpatriotic individuals.

You see how much more persuasive the argument would be as so formulated, because it would be clear that this is not a partisan point, and would give the reader confidence that Prof. Levinson will be clamoring for the early resignation of the next Democratic president who is due to be replaced by a Republican successor. Unfortunately, Prof. Levinson's formulation gives the reader no such confidence.

# posted by

sean : 5:20 PM

This left-wing habit of insisting that those who disagree with you politically are not just wrong, but evil, really degrades our public discourse.

Both sides of that particular divide dehumanize and demonize the other--it isn't a diagnostic feature of either group.

Or have you already forgotten that liberals are just as good as--if not worse than--terrorists?

Methinks you should quit drinking the coffee in the faculty lounge--it's going to your head.

# posted by

PMS_CC : 6:54 PM

This sounds like the makings og the plot of Treasure of the Sierra Madre".

The President has to resign and get the Vice President to resign then get the Speaker of the House - someone who spent a career trying to get there - must resign. The Best Case is that the speaker would then rely on the collusion of the entire party caucus to put him/her back in that position after the inauguration.

The first line of defense against becoming a victim of crime is to require that the criminal must collude with others to pull off the caper.

Even with the best of intentions, to pull this off requires an exponential order of cooperation that may have been beyond the politbureau.

# posted by

nocasa : 8:02 PM

Well, make the person an officer! The piece noted that Wilson planned to appoint Hughes as Secretary of State. This was a key part of the plan, since that office was third in line at the time.

The rule is an "officer" can be set as next in line. It could even be an inferior one, which need not be appointed by the President and confirmed by the Senate. Not that this is too important given the POTUS here would have to resign, so one would assume would appoint the right person.

So, after the election, or what have you, Congress creates some new gov't office. Anything would do, apparently. This office would in part be next in line after the v.p.

What is the constitutional problem?

# posted by

Joe : 6:49 AM

"Both sides of that particular divide dehumanize and demonize the other--it isn't a diagnostic feature of either group."

Actually, I think it's really striking how much less civil the bloggers and commenters are on this site compared to Volokh Conspiracy.

# posted by

sean : 9:33 AM

Actually, I think it's really striking how much less civil the bloggers and commenters are on this site compared to Volokh Conspiracy.

Huh. I would have said the exact opposite was true. And that's with fairly significant monitoring of comments by some posters at Volokh.

# posted by

Mark Field : 10:47 AM

…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.

But at this point, hasn’t another President been elected? If not, certainly that will be true after the Electoral College meets.

What was expected to happen after a President was elected and both the President and Vice-President were out of office? The wording above suggests that he was expected to be sworn in immediately.

Not that Bush and Cheney are interested in resigning. They’re too busy removing science from the Endangered Species Act, and anywhere else they can.

# posted by

Hank Gillette : 5:41 PM

Wouldn't it be simpler for the VP to resign (see Agnew), a new VP to be nominated and confirmed (Ford), and the President to resign (Nixon)? I agree that the lame duck period is a major Constitutional flaw, but I don't see how it prevents an early succession when all parties agree. They clearly don't. Among other things, it would ruin the party schedule at Blair House.

# posted by

rmenglish@gmail.com : 6:51 PM

What we need here is a permanent fix to the problem, and that can only be done by amending the Constitution.

Specifically, the Constitution should be amended so that the president-elect decides when he takes office.

# posted by

Johnny Pez : 11:11 AM

tell me which side i'm on
approaching constant failure
who's friend or foe?
between love and hate
which path to follow?
how can i keep balance in this race?
come faith i'm dying.. slowly

# posted by

AntoL-Nyo : 12:08 PM