Thursday, February 16, 2012

Brian C. Kalt's "Constitutional Cliffhangers"

Brian C. Kalt is professor of law at Michigan State University.

He applied the “Page 99 Test” to his new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies, and reported the following:
My book Constitutional Cliffhangers is about some serious weaknesses in the United States Constitution’s provisions for selecting, replacing, and punishing presidents. I consider six hypothetical controversies, and page 99 falls in Chapter 4, in which the president and vice president are dead, and the Speaker of the House and secretary of state are fighting for control of the White House.

There is a serious argument that the current succession law -- which puts the Speaker of the House and president pro tempore of the Senate (or PPT) in the line of succession -- is unconstitutional. It would take a certain special sort of situation for anyone to even raise this argument, but the scenario in this chapter raises such a situation: the Speaker has a hand in delaying the confirmation of a new vice president, and also in fueling the murderous rhetoric that leads to the assassination of the president. The secretary of state is thus speaking for those who feel as though the Speaker has essentially led a coup.

The chapter explores this hypothetical drama, and it fully engages the legal arguments on both sides, but page 99 is part of a different discussion. It deals with all the reasons why it is worse as a matter of policy to have the Speaker and PPT in the line of succession than the secretary of state. In other words, having the Speaker in the line of succession is not only risky, it’s also a bad idea. There are plenty of counterarguments, legal nuances, and dramatic scenes ... just not on page 99.
the presidency in mind. But the secretary of state is an executive officer, and a key player in the administration who works closely and directly with the president. This would make for a relatively smooth transition if the secretary ever needed to take over. In a time of crisis, the secretary of state’s presence at the helm would send a particularly reassuring signal to the rest of the world, for whom the secretary is already the president’s designated contact. Following the secretary of state (who has sometimes been a naturalized citizen, and thus statutorily disqualified from acting as president) is the secretary of the treasury, another key executive who would provide a smooth transition and a reassuring signal (in his case, to Wall Street).

By contrast, the Speaker and PPT are legislative officials. Moving the Speaker or PPT from legislation on Capitol Hill to execution at the White House, on a moment’s notice, would be more jarring -- for the Speaker or PPT themselves, for Congress, for the executive branch, for the country, and for the world. Notably, there have only been four sitting members of Congress elected president, in 1880, 1920, 1960, and 2008, and none of them were Speaker or PPT.* Compare that to the last government job held by other new presidents. Since 1920, there have been six vice presidents, five governors, a general, and a cabinet secretary -- all executives. It is true that the Speaker’s job is comprehensive in scope, while cabinet secretaries have a narrower portfolio, but when getting a new president, the voters have shown by a wide margin that executive promotions are easier to swallow than lateral moves from the legislature.

An even more jarring possibility is a change in party control. Cabinet secretaries are part of the president’s administration and are virtually always a member of her party. The president handpicks them. They work closely

* President Polk was a former Speaker but had more recently been a state governor. Three other Speakers -- Henry Clay, John Bell, and James Blaine -- ran unsuccessfully for president, but only Clay ran as a sitting Speaker, and Blaine had more recently served as secretary of state. No former PPT has ever been elected president, though former PPTs William Crawford and Hugh White ran unsuccessfully for president. Sitting Speakers Schuyler Colfax and John Nance Garner and sitting PPT William King were elected vice president. Former PPTs John Tyler and Charles Curtis were elected vice president, and Tyler succeeded to the presidency upon the death of President William Henry Harrison.
Learn more about Constitutional Cliffhangers at the Yale University Press website.

--Marshal Zeringue