Bryan H. Wildenthal, Professor of Law Emeritus at Thomas Jefferson School of Law, San Diego, California, discusses Speaker Pelosi's position as second in line to the presidency...
Is Nancy Pelosi, as Speaker of the House of Representatives, properly and constitutionally second in line for the presidency? The question has urgent new relevance in light of President Donald Trump becoming sick with Coronavirus and the spread of COVID infections at the top levels of the administration. If a double vacancy occurred due to the death or incapacity of both Trump and Vice-President Mike Pence, who would be next in line?
The Presidential Succession Act, a law passed by Congress 73 years ago, says Pelosi would take over. But earlier this year, Harvard law professor Jack Goldsmith co-authored an essay, “A Presidential Succession Nightmare”, claiming there is “a powerful (though not airtight) argument” that placing top congressional leaders like Pelosi in the line of succession violates the Constitution. Goldsmith, like many others, relies heavily on a 1995 article by law professors (and brothers) Akhil and Vikram Amar.
Goldsmith sketches out (though not endorsing) a frightening scenario in which Secretary of State Mike Pompeo might claim he (not Pelosi) is constitutionally next in line, on the basis of a possible opinion that Attorney General Bill Barr might issue challenging Pelosi’s eligibility. Many commentators (myself included) would agree it’s unwise as a policy matter for the Succession Act to include congressional leaders, since (among other problems) it creates the potential for an abrupt midterm change in political party control of the White House.
But is there really any basis to challenge the Act as unconstitutional? The argument touted by Goldsmith and the Amars is not only “not airtight,” it’s not even persuasive. It is stunningly weak. Any challenge to Pelosi in the event of a double-vacancy crisis would be a dangerous and reckless usurpation, amounting to a virtual coup d’état.
The United States Presidential Succession Act states very plainly that, in the case of a double vacancy in the presidency and vice-presidency, the Speaker of the House shall “act as President” for the duration of the relevant vacancy or inability, potentially for the rest of any four-year presidential term then underway.
This is not a recent innovation. The very first presidential succession law, passed in 1792 by the Second Congress, composed of many of the founding fathers who participated in the Constitutional Convention of 1787. The 1792 law included Speaker of the House as third in the line of succession.
The current placement of the Speaker as second in line dates to 1948. Both major political parties have had ample opportunity for decades to change the law if they feel it is unwise or violates the Constitution. Each party has had full control of the White House and both houses of Congress (the Republicans in 2002–06 and 2017–18, the Democrats in 2009–10), at various times even since the Amar article was published in 1995. Each party has also, while holding the presidency since then, confronted a House Speaker of the opposing party (Clinton during 1995–2000; Bush during 2007–08; Obama during 2011–16; and Trump since 2019). They have thus been fully aware of the alleged problem with the means to fix it. Yet neither party, and no major political leader, has made any serious effort to do so. It is far too late in the day for any political leader now to self-servingly and recklessly challenges the law during an actual succession crisis.
Even if there were a strong constitutional argument against the succession law, the Attorney General has no authority to strike down an Act of Congress by merely issuing an opinion. He is not a court. Only a final judgment by our independent judicial branch (ultimately, the U.S. Supreme Court) could properly do so. Any lower court almost certainly would (and should) stay the effect of any ruling against the law until the Supreme Court issued a final decision. Pelosi would serve in the meantime — and the Attorney General, military commanders, and all other Americans would be duty-bound to follow the law and respect her authority until and unless the Supreme Court were to rule otherwise.
Neither text nor history supports the arguments against Pelosi’s eligibility. Conservative “originalists” claiming to follow the “original public meaning” of the Constitution should find powerfully dispositive the resolution of the issue by the Congress of 1792, very close in time to the Constitution’s ratification. True, James Madison and others questioned the Speaker’s eligibility during that era, but the issue was resolved against their view.
The text of the Constitution is crystal clear, which should also carry great weight among conservatives, including current justices on the Supreme Court who style themselves as “textualists” as well as “originalists.” The Constitution explicitly and unambiguously defers to Congress on this issue, stating that in the event of a double vacancy, “the Congress may by Law … declar[e] what Officer shall then act as President” (Art. II, sec. 2, cl. 6). The Speaker of the House is obviously some kind of “Officer.” The very same Constitution (Art. I, sec. 2, cl. 5) explicitly refers to the Speaker as an “Officer,” stating: “The House of Representatives shall choose their Speaker and other Officers” (emphasis added).
Critics like Goldsmith and the Amars note that the Constitution sometimes appears to use phrases like “Officers of the United States,” or offices “under” the United States, in ways that suggest those more limited and specific phrases include only executive branch officers. But even granting that argument, the Article II clause on presidential succession conspicuously fails to include any such limiting terms.
It is argued that some early drafts of the Constitution, during the Philadelphia Convention of 1787, did use a more specific phrase in the Succession Clause. But no significant weight can properly be attached to that. The Convention kept its deliberations intentionally secret, so they had no impact on the ratification debate and cannot properly be used as evidence of the Constitution’s original public meaning. Madison’s private notes (which many historians have noted may not be entirely reliable) were only disclosed decades later. What counts is the text, publicly proposed by the Convention.
The Amar article claims it “proves too much” to include “Officers” of Congress in the succession because then officers of state governments are also referenced in the Constitution (see Art. VI), which might be included as well. But it’s the Amars’ own argument that proves too much. There’s nothing in the Constitution to prevent Congress from including an officer of a state government in the succession, however absurdly unlikely it may be that Congress would ever choose to do so.
The article by the Amars is creative and interesting on the whole but relies largely on imagining such absurd and far-fetched scenarios, and arguments from vague implications drawn from the “structure” of the Constitution. Such arguments have no proper role to play where, as here, the text and history are clear.
It was not at all absurd for Congress, in 1792, to place its own top “Officers” in the line of succession. Was this congressional “self-dealing”? Possibly so. Welcome to politics! Did the Constitution’s framers overlook the possibility that such congressional officers might be of a different political party than the incumbent president and vice-president? Very likely yes, since they also overlooked the deeper problem, under the original constitutional design, that the president and vice-president might be of different parties. President John Adams’s vice-president was his political arch-enemy, Thomas Jefferson. The original constitutional process of the presidential election was so flawed that Jefferson, in 1800, found himself tied in the Electoral College with his vice-presidential running mate, Aaron Burr.
These glitches were only resolved by the 12th Amendment in 1804. But Congress has never proposed any constitutional amendment to clarify or restrict eligibility for presidential succession established in 1792.
The Amar article points to the Constitution’s Incompatibility Clause (Art. I, sec. 6, cl. 2), which prohibits any member of Congress from simultaneously “holding any Office under the United States” (which, at least in that instance, was doubtless intended to refer only to executive offices, and must certainly include the presidency). But the Succession Act easily disposes of that issue by providing that the Speaker may only act as president “upon [her] resignation as Speaker and as Representative in Congress.” The Amars claim the Constitution’s Succession Clause disallows that solution, that the relevant “Officer” must continue to hold the office they held before “act[ing] as President,” while acting as such. But the text can be read with equal plausibility (and far more common sense) to indicate merely that the person holding the relevant office, at the time a succession occurs, may “act as President” after resigning from the qualifying office. As a practical matter, it would not seem wise or even feasible for the same person to continue holding both offices anyway.
The Constitution was designed as a practical charter of government, not some kind of puzzle or word-game to be picked apart by creative academics. The Amar article, too often, strains to imagine or conjure up potential absurdities in the text, where none necessarily exists in the first place. To be sure, the Amars offer powerful policy arguments (with which I heartily agree) against the wisdom of the current succession law. But that is not the issue here.
The Amars also claim the impeachment provisions of the Constitution suggest that members of Congress are not “Officers” for purposes of presidential succession, since the House has never sought to impeach one of its own members (or any sitting senator), and yet the Constitution authorizes impeachment of “all civil Officers of the United States” (Art. II, sec. 4).
Two points seem to dispose of that frivolous objection. First of all, again, the limiting words “of the United States” might (at least in some cases) cover only executive officers. And as we have seen, those limiting words do not appear in the Article II Succession Clause. Furthermore, is it really so clear that members of Congress are not subject to impeachment? The fact that none ever have been impeached is likely because of the practical point that each House has the constitutional authority to expel any of its own members, thus rendering impeachment an unnecessary remedy.
The Constitution provides (Art. I, sec. 3, cl. 7) that punishment in cases of impeachment “shall not extend any further than to,” among other things, “disqualification to hold and enjoy any Office … under the United States” (emphasis added). One would hope that the clause would include the “office” of senator or representative, or any specific legislative “office” like Speaker of the House.
Such legislative officers would certainly seem to be (unless some specific context indicates otherwise) officers “of” or “under” the United States since both Houses of Congress are part of the U.S. government. They are not, after all, officers of France or of some individual state! If they are not included in the above-quoted clause, there would be no way for the Senate, even in the case of impeachment of a typical executive officer, to prevent the convicted miscreant from later being elected to the House or Senate. That would seem a far more odd and unreasonable result than merely to suggest that impeachment might (technically) be an option for members of Congress, even if duplicative and not of much practical necessity in light of the expulsion option.
In sum, it would be a shocking distortion of the Constitution, in defiance of duly enacted law, for any executive branch officer, during the heat of a crisis, to contest the constitutional eligibility of the Speaker of the House to act as president if needed. Text, history, and common sense all militate strongly against any such reckless, dangerous, and destabilizing usurpation.
Bryan H. Wildenthal, Professor of Law Emeritus, Thomas Jefferson School of Law (San Diego), will be a Visiting Professor in Spring 2021 at the University of San Diego School of Law.
Suggested Citation: Bryan H. Wildenthal, Speaker Pelosi Is Second in Line for the Presidency: Claims to the Contrary Are Weak and Dangerous, JURIST – Academic Commentary, October 16th, 2020, https://www.jurist.org/commentary/2020/10/bryan-wildenthal-pelosi-presidency/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at email@example.com.
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