Congress has one more thing to settle this year

One important thing Congress should do before a divided government likely returns next year? Finally, set the order of presidential succession. Remember, the only thing the Constitution says about this process is that the vice president should become president if there is a vacancy. Even that wasn’t entirely clear until the 25th Amendment was ratified in 1967 and not only cleared up that ambiguity, but also provided a way to replace a vacant vice-presidential position. The rest of the process was established by acts of Congress, and the rules have changed several times over the years. The current version of the Presidential Succession Act, which places the Speaker of the House and the President pro tempore of the Senate in the line of succession after the Vice President, originally dates back to 1947. Before that, at least from 1886 , members of Congress were not included in the process at all. Changing that was a mistake. Legislators should never have been placed in the line of succession, and they should now be pushed aside. To begin with, the whole idea is contrary to the logic of the constitutional system of separate institutions sharing powers. The electorate (well, the electoral college, but the same principle applies) chose the president and the vice-president. If these positions became vacant, they would have to be filled by officials who would steer the nation more or less in the same direction. This would have been true even if political parties had never emerged, but it is very evident now, given the partisan presidency. Simply put, if the nation chose a Democrat, then a Democrat should be president; if a Republican, then it should be a Republican. Regardless of the outcome of the last congressional elections. Moreover, the party of the presidency should never be up for grabs in the event of a national emergency, be it a resignation, impeachment or death. It is too much to ask of any Congress to set aside party interest when the stakes are so high. The American system expects politicians to follow sound incentives. Of course, we would also like them to care about the national interest, but the framers of the Constitution knew that when a strong self-interest is at stake, politicians are unlikely to set it aside and do what is best for the nation. It is easy to think of hypotheses where such a dilemma would come into play. Suppose the vice presidency becomes vacant during an impeachment trial in an era of divided government. On the one hand, the majority party might be tempted to refuse to confirm a replacement (under the terms of the 25th Amendment) to keep its own Speaker of the House next in line. On the other hand, the president’s party might be tempted to oppose impeachment and sentencing, even if clearly justified, if it meant handing over the presidency to the other party. But there is more. Acting President of the Senate is a largely ceremonial position usually held by the most senior member of the majority party – which means it is often someone quite old, and rarely someone chosen as leader of the Senate. this chamber, let alone for the presidency. The speakers are better; at least they are chosen for their political abilities. But few speakers had the communication skills demanded by the modern presidency, especially in times of crisis. And surely any situation in which the line of succession comes into play would require such skills. After the attacks of September 11, a commission on the continuity of government examined all this and recommended serious changes. Not only should members of Congress be excluded from the line of succession, but most cabinet members should be as well. (Under the current system, the two top leaders of Congress are followed by cabinet secretaries in the order in which their departments were created.) The commission recommended that only four cabinet secretaries, drawn from the most important departments, follow the vice-president. After that, the president would have to nominate four other potential replacements (most likely notable retired officials from the president’s party, all of whom would be reasonably well-known and credible leaders in the unlikely event that one of them had to serve). Not only would this avoid a “designated survivor” scenario, in which a third-rate official who had filled the cabinet would suddenly become president, but it would also mean that the line of succession would likely include people scattered across the country – a wise precaution. if some national calamity in Washington were to force the issue. I argued in 2018 that Republican majorities in Congress should act quickly — before the midterm elections that year and the likely resumption of a divided government — to change the law to prevent the president of the House Nancy Pelosi to be a step away from the presidency. We are in the same situation today, with the parties reversed, and it still makes sense to act. Maybe the Democrats will be more accountable now than the Republicans were then.

About Michael S. Montanez

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