Doug Mataconis addressed “The Problem Of Octogenarians In The Presidential Line Of Succession” yesterday. While largely theoretical—the people behind the Vice President in the succession order only come into play in a catastrophic event that wipes out several people nearly simultaneously—it makes no sense for the Presidency to be handed to a random Senator whose only virtue is having hung around too long.
As Doug noted, there are legitimate questions as to whether the devolution the Chief Executive to a member of the Legislative branch is even Constitutional. Under our system, there’s no way to get a definitive ruling on that until a Speaker or President Pro Tempore actually becomes President and a suit is filed. One suspects that, under those circumstances, the Supreme Court would be exceedingly unlikely to throw the country in further turmoil and would therefore punt it as a “political question” and refuse to rule.
Beyond the questions of age and Constitutionality, though, there’s simply no way the current system reflects the will of the voters. Additionally, it creates an epic conflict of interest.
Let’s posit a not-incredibly-far-fetched scenario wherein Democrats take control of the Congress after the November elections and impeach President Trump. Arguably, any case stemming from the 2016 campaign would also implicate Vice President Mike Pence. It would be quite bizarre for a Speaker Nancy Pelosi to become President in that scenario. Further, the prospect of a President Pelosi would make it even harder to enough Republican Senators to reach the supermajority threshold to vote their conscience.
And, while Democrats might argue this would be just deserts given that Hillary Clinton not only received nearly three million more popular votes than Trump in 2016 but the impeachment involved foreign interference in the election, the shoe could easily be on the other foot. Imagine if a plane crash or assassination plot simultaneously took out Barack Obama and Joe Biden in 2013. How would you have felt about four years of President John Boehner? It would have been a travesty.
In its original form, the Constitution provided that the President be the winner of the Electoral College and the runner-up would become his Vice President. Once formal political parties entered the mix, this was recognized as untenable and we passed the 12th Amendment to ensure the Presidency wouldn’t switch parties in the event of the death or impeachment of a President.
The original system had another quirk that seems unfathomable in hindsight: Once a Vice President moved up to fill a Presidential vacancy, the Vice Presidency was simply left vacant until the next Presidential inauguration. Numerous times, then, we were one heart attack or assassin’s bullet away from the Speaker of the House taking over the White House. We finally remedied that flaw with the 25th Amendment in 1967.
It seems rather obvious that we need a process in place where someone who will support something like the policy platform the winner of the most recent Presidential election campaigned on will hold the office until the next election. Congress could pass a new law designating which cabinet posts follow the Vice President in the line of succession; currently, it’s done by the order in which the post or its antecedent was first established. Personally, I’d prefer to adhere to separation of powers and give that authority to the President himself, perhaps limited by law to cabinet secretaries who had been confirmed by the Senate.
Yes, it would be odd to have a President who received not a single vote from a single American. But we had an unelected President and Vice President simultaneously within my memory. Gerald Ford became President after the resignation of Vice President Spiro Agnew and then President after the resignation of President Richard Nixon. Rockefeller then moved up to fill Ford’s spot. It’s true that Ford was at least Republican Minority Leader at the time of his selection as Vice President; but there’s no Constitutional requirement that a current elected official be chosen.
