57 days

A tough theory, a halfway solution, and 7 other things worth your time.

Aug 13, 2020

I’d like to talk about 57 mostly forgotten days in U.S. history, along with a ticking time bomb of a problem in the U.S. Constitution, and a possible way to fix it — at least partially.

Enthralled yet? Actually, that’s part of the problem. It all seems super-technical, complex, and maybe even boring—until you realize what’s hiding in plain sight.

Then, it’s almost like a Kiefer Sutherland movie waiting to happen (or maybe a TV show, actually). But I’ll do my best.

So, let’s go back to 1973. Two dates, actually: October 10 and December 6, 1973.

President Nixon’s vice president, Spiro Agnew, resigned under scandal on the first date. On the second date, Congress voted to confirm his fellow Republican, Gerald Ford, as his replacement.

In between however, there was no sitting U.S. vice president—and this was just as Watergate was really heating up. For 57 days, under the Presidential Succession Act, Speaker of the House Carl Albert, a Democrat, was next in line for the presidency.

However, Albert was very concerned about the idea of the presidency switching parties without an election, especially given that the House was investigating the president at the time. So, according to a secret memo that emerged nearly a decade later, he considered two contingencies, in case Nixon resigned or was removed:

Serve as acting president, but push for Ford’s confirmation as vice president anyway, so as create “a non-partisan administration of national reconciliation and unity.”
Alternatively, resign as speaker, and ask the Democratic-led House to elect Ford as as his replacement, so that he (and not Albert) would serve as acting president.

It was moot in the end, because Ford was confirmed before Nixon resigned. But, let’s just sit back and marvel for a second that there was a time when a U.S. politician considered giving up power in favor of the opposing party, for unity’s sake in a time of national crisis.

Wild, right? But while we’re chewing on that, it turns out there’s something bigger to consider now about this whole scenario, thanks to an argument that some legal academics have been making over the past few years.

In short, they suggest that the Speaker of the House is actually constitutionally ineligible to serve as acting president. The theory goes like this:

The Constitution’s Succession Clause says that Congress can direct “what Officer shall then act as President,” if both the president and vice president cannot serve.
According to this legal argument, however, that term, “Officer” isn’t just a synonym for “official” or “person,” but instead means that Congress can only choose from among the holders of current Executive Branch “offices.”

Are they right? Who knows? And because of the way our legal system works, the argument likely can’t likely be tested by the courts until it’s actually triggered, and a controversy develops.

But if they were right, the line of succession would skip all the way down to the Secretary of State, since the Constitution trumps a mere federal statute.

So, imagine the following scenario. (Then, reverse the political parties so we can all see the other side):

President Trump and Vice President Pence are incapacitated. (God forbid. Seriously, even among people who strongly oppose them, I hope nobody actually wishes them harm.)
House Speaker Nancy Pelosi assumes the mantle of acting president.
But then, Secretary of State Mike Pompeo objects, arguing that he’s the next true “Officer” in line, and that therefore he, not Pelosi, is the actual acting president.

Uh-oh: a leadership crisis like nothing we’ve ever had in this country, at least since the Civil War. I suppose it would go to the courts, but even on the fastest track, we’d have no universally recognized chief executive for days at least, probably weeks.

In the meantime, who’s the commander in chief of the military? Who can issue executive orders, or pardons? How about judicial nominations? What if either one supposed “acting president” or the other decides to fire all the cabinet secretaries? Literally, who sits in the Oval Office?

This isn’t the kind of thing I normally write about here. It’s an election year, and obviously politics comes up—but I try not to hit people too hard with my personal political opinions. We all know who we will support in November, and none of us is likely to change anyone else’s minds.

But this is more systemic, and having read about it recently, I’m at least intrigued—maybe a bit worked up. As a solution, I’m signing on with what writers Jack Goldsmith and Ben Miller-Gootnick proposed on the Lawfare blog a few months back.

It’s actually fairly simple:

Congress should amend the law to remove the Speaker and the Senate President Pro Tempore from the line of succession. Go straight from vice president to Secretary of State. Certainty is our friend here.
But, the law would have to include a trigger that ensures it only goes into effect some time in the future — 5 or 10 years maybe — so that nobody knows ahead of time which party it might benefit. Otherwise, I can’t see how it would ever be enacted.

This does leave the problem of what happens over the next decade if this comes up, before the change would take effect.

And I can’t even think through what would happen if it happened very soon: say, if the November election were disputed, and then the House and Senate deadlocked under the 12th Amendment, and then January 20, 2021 somehow arrives with no clear answer…

I guess we’d looking for the unlikely ghost of Carl Albert, and the kind of politicians who would be willing to put comity and security over ambition.

Nobody would be happy about it. But it sure would beat the alternative.

7 other things worth your time

Bill Gates says he’ll spend $150 million to drive the cost of a Covid-19 vaccine below $3 per dose. (Vox)
A Canadian company has unveiled drones that can plant 40,000 trees in a month. By 2028, they’ll have planted 1 billion. (Fast Company)
Saying, “This is no longer a debate,” a Florida sheriff bans deputies and visitors from wearing masks. (WESH-TV)
Talk fast: AOC gets 60 seconds to speak at the virtual Democratic Convention. (Forbes)
Meanwhile in Belarus: a “rigged” election leads to massive protests, and an “information blackout.” (The New Yorker)
Bill Cosby, whose earliest release date from a Pennsylvania prison would be September 2021, has filed a new appeal arguing that the trial that got him a sexual assault conviction was “fundamentally unfair.” (Jezebel)
NASA says it’s discovered that Ceres, a dwarf planet between Mars and Jupiter, has a salty ocean beneath its surface, making it a contender for alien life. (Business Insider)

Understandably by Bill Murphy Jr.

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