Bruce Ackerman has read a novel and heard unsubstantiated rumors and from these concocted a Constitutional crisis which he’s convinced the folks at Slate to publish.
New Yorker writer Jane Mayer’s new book, The Dark Side, opens with a shocker. Apparently sometime in the 1980s, President Ronald Reagan issued a “secret executive order” that in the event of the death of the president and the vice president “established a means of re-creating the executive branch.” Reagan’s order violated the express terms of the Constitution and governing statutes.
Does a similar order exist today? We aren’t told. But we do know that Dick Cheney participated in the secret “doomsday” exercises under the Reagan order, and given his central role at present, it is imperative for Congress to find out.
Congress last considered the problem of a dual vacancy in the presidency and the vice presidency when Harry Truman was in the White House. In the Presidential Succession Act of 1947, lawmakers stipulated that if both positions are empty, power passes first to the Speaker of the House or, if she, too, does not survive, to the president pro tem of the Senate. But relying on James Mann’s earlier book Rise of the Vulcans, Mayer reports that Reagan “amended the process for speed and clarity … without informing Congress that it had been sidestepped.” We don’t know how. But if the order bypasses the speaker and the Senate president pro tempore in favor of an official in the executive branch, we have a recipe for a constitutional crisis.
Well, yeah. But, as Ackerman acknowledges, the Bush Administration has explicitly stated that they’ll follow the Succession Act. And there’s the Supreme Court, which would surely uphold a duly passed, six-decade-old statute if it conflicted with a “secret” executive order from a dead executive.
Now, as it happens, I think the 1947 process is a dubious one. It simply makes no sense to have an elected president of one party succeeded by someone, potentially of the opposition party, elected only by the residents of one Congressional District. I’d much prefer, say, the Secretary of State or the Secretary of Defense to take over. We should change the law to that effect, in theory, but there’s generally not much impetus to pass legislation on purely theoretical matters that no voter is likely to decide the next election on, let alone if said legislation would shift power, however theoretical, away from the legislative branch.
Still, a Constitutional crisis, it ain’t.
