Monday, December 1, 2008

Wrong woman two heartbeats from the presidency?

"Goofs for 'The Wild Wild West' The Night of the Skulls (1966)
Factual errors: The Secretary of State is constantly being mentioned as the successor to the Presidency in the event something happens to the President and Vice-President of the United States. This is incorrect. In the 1870s, succession was determined by the Presidential Succession Act of 1792, in which the Senate president pro tempore was next in line after the vice president to succeed to the presidency, followed by the Speaker of the House. (The order of succession would change in 1887 and 1947.)"

Isn't it kind of impressive that someone actually noticed that error in an episode of "The Wild Wild West" and that furthermore, he or she posted it on the website? No, it wasn't me; I wish it had been. The series fan who shares this information makes one small error himself: the order of succession changed in 1886, not 1887 (Amar, America's Constitution: A Biography, 2005, p. 172).

Professor Amar's synopsis of presidential succession is worth note, because he argues that the 1947 act, still in force, which makes the Speaker of the House third in line for the presidency, is unconstitutional. Amar makes this case by focusing on one word in Article I, Section 1; I've highlighted that word:

"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."

Here's a look at Amar's argument against our current line of succession:

"What exactly did 'Officer' mean in this context? An early Philadelphia draft (of the Constitution) had specified that Congress must choose an 'officer of the United States.' A style committee later shortened the clause with no apparent intention of changing its meaning. The Senate president pro tempore and House speaker might be 'officer(s)' of their respective houses, but could just any 'officer' satisfy the succession clause? Could Congress pick a state 'officer,' or a local sheriff--or the president of a private cricket club, for that matter?

"Surely, Senate and House leaders were not 'officer(s) of the United States--a constitutional term of art reserved for members of the executive and judicial branches." (Amar, pp. 170-171, emphasis his).

In fact, notes Amar, James Madison was critical of the 1792 law for this very reason. By the way, the 1886 revision actually did make the secretary of state first in line after the vice president; in 1947 we went back to having a legislator third from the Oval Office (Amar, p. 172). The 1947 law also has the unfortunate consequence that if the house speaker is from the opposite party of the president and vice-president, there is incentive for Congress to find a means to impeach and remove from office the two guys on top so the speaker's party can run the show. That wouldn't happen if the third in line was the secretary of state, who is from the president's own party.

If you accept the argument, the "Officers" who stand in line behind the president and vice-president must be members of the cabinet. Thus, the mention of the Secretary of State as third in succession in "The Wild Wild West" was bad history but sound constitutional thinking!

I wonder how President-elect Obama, who taught constitutional history, feels about this. If he agrees with Amar, this would be the perfect time to push for a change back to the line of succession in force between 1886 and 1947. If heaven forbid, Obama and Biden should both suddenly meet their makers, the new president would still be a member of their party whether it was Nancy Pelosi or Hillary Clinton. Also, the next in line would be a woman either way, so if Obama and Congress moved to put Secretary Clinton two steps away instead of Speaker Pelosi, no one could whine that sexism was involved.

Of course, if Agents West and Gordon aren't vigilant, Dr. Loveless will no doubt invent some kind of mind control method that causes all Americans to accept him as our president.

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