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Uncharted Territory: Governmental Plans for Everything Except a Succession Crisis

Image by Michael Tozzi

The recent diagnosis of United States President Donald Trump with COVID-19 and his subsequent hospitalisation thrust the US government into a state of confusion; the only comparable event in recent history being the failed assassination attempt on Ronald Reagan in 1981. At the time of writing, although President Trump has been discharged from Walter Reed National Military Medical Center, he is by no means “out of the woods” according to his doctors. During his hospitalization, neither he nor Vice President Mike Pence invoked the 25th Amendment to the United States Constitution which empowers the Vice President to assume the Presidents’ duties as Commander-in-Chief:

“In case of the removal of the President from office or of his death or resignation, the Vice President shall become President… Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”

While Mike Pence has tested negative for the virus, the executive branch of the US government lies in a state of unease amidst a global pandemic which continues to incapacitate members of the Senate and White House, in an election year during a judicial nomination no less.

This current situation should be used to critically evaluate legal protocols surrounding the presidential line of succession. The existing chain of command, established by the Presidential Succession Act of 1947, stipulates that after the Vice President the Speaker of the House, the President Pro Tempore of the Senate, followed by various Cabinet officials, succeed the President in the event of his or her incapacitation.

While former Vice President and Secretary of Defense Dick Cheney anticipated the need for an “armageddon plan” during the Cold War to prepare for a nuclear strike, the practicalities of the Succession Act have never been tested despite inconclusive reviews in the post-9/11 era. It would not take an apocalyptic event to expose, to devastating effect, the flaws with the current and possibly inadequate set of executive succession plans.

With a divided government headed by a notoriously inept presidential administration during a national election, it does not require an overactive imagination to conceive of succession crisis scenarios for which there are no clearly delineated procedures. There has already been speculation about the true state of President Trump’s health compared to official White House statements. His administration has also faced criticism for being too incompetent and corrupt to honestly invoke the 25th Amendment and provide the nation with legitimate leadership during these uncertain times.

While the Succession Act provides for the order in which officials can be called upon to replace the President, observers have already noted that there exists no mechanism or precedent by which the Speaker of the House would assume presidency from the Vice President. This is a blueprint for chaos in the event that the VP, acting as POTUS, became incapacitated prior to a new VP being sworn in and confirmed by both houses of Congress. It is of grave concern particularly given the potential for disastrous, rapidly changing medical outcomes for those afflicted with COVID-19. The mere possibility of a Vice President unwilling to relinquish his or her powers despite a debilitating medical condition invites the possibility of a leadership crisis.

Due to the separation of powers innate to the structure of the federal government, there is also cause for debate as to whether the Succession Act is actually constitutionally valid at all. A Congressional Research Service (CRS) report published in 2004 notes observations of legal scholars referencing the “Incompatibility Clause” of Article I of the Constitution, which forbids legislators (like the Speaker of the House) from holding roles within the Executive Branch of the government. For a Speaker to act as President, they would need to resign from their position within Congress.

This report notes subsequent questions that might arise in the event of a succession crisis following the incapacitation of a President and VP. For example, the Succession Act does not provide a legal roadmap to assert the Speaker’s authority in a crisis. Should a member of the original administration’s Cabinet, like the Secretary of State, claim superior executive authority following the resignation and replacement of the Speaker of the House, it is unclear how such a conflict would be resolved prior to an election. The possibility of a challenge from within the Cabinet due to a divided government is one that could imperil the continuity and legitimacy of the democratic government.

In practical terms, following the hypothetical incapacitation of both President Trump and Vice President Pence, a serious legal crisis could emerge. Unfortunately, this is made all the more likely by the Trump administration’s continued penchant for campaigning at COVID-19 superspreader events despite the serious realities of the pandemic.

There is a possibility, however small, that Speaker Nancy Pelosi’s claim to presidential authority in this hypothetical crisis might be challenged on constitutional grounds by a member of Trump’s Cabinet, an issue raised by Harvard Law Professor Jack Goldsmith. As this matter has never faced formal review, it would fall to the Supreme Court to determine the Succession Act’s constitutionality.

It would be nothing short of disastrous should this be met by a divided court. There are now only eight justices instead of the full court of nine. The lack of a tiebreaker justice in the vacuum of judicial power caused by Ruth Bader Ginsburg’s death means that delays in the confirmation of her potential successor, Amy Comey Barrett, will complicate future rulings on any matter, great or small. A split ruling on a matter of succession, however unlikely, is a dangerous possibility.

This hypothetical succession crisis does not take into account the complications posed by the 2020 election. Factors such as already-mailed ballots, disunified party officials across different states, and laws against faithless electors within the Electoral College threaten to compound the potential problems facing executive succession. There is also no guarantee that such questions will remain hypothetical as Donald Trump and Joe Biden are, due to their age, face a relatively high risk of death from COVID-19. It is a uniquely American legal conundrum.

The federal government has passed laws pertaining to matters better left to local and state governments by the Tenth Amendment, such as dairy products, highway billboards, the feeding of whales, and rudeness to horses. However, it has seemingly been unable to adequately provide guidance for the continued authority and succession of the Commander-in-Chief. That this explicitly stated Constitutional priority of legislators has been neglected may prove catastrophic in the days and weeks ahead.


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