Every 5 years, I say this

No, seriously. I wrote about this 5 years ago, and of course nothing has changed.

I’d like to talk about the presidential line of succession.

This is one of those things you hope you’ll never need. But like a seat belt or a car’s air bag, if it malfunctions, the consequences could be catastrophic.

Before I dive in (and before you close this email), this has been a nagging concern of mine for some time -- admittedly kind of irrational, since there's literally nothing I can do about it except write about it occasionally.

Say, every five years? Here was the last time: August 13, 2020.

(If you’ve been here long enough to remember, I love you.)

O.K., buckle up, so to speak (just to continue the automotive analogies).

Bottom line upfront: Congress should change the presidential succession law so the line goes from president to vice president to secretary of state (and then the rest of the cabinet). Cut out the Speaker of the House and the president pro tempore of the Senate.

Why? Because there’s a constitutional land mine … no wait, sorry, mixed metaphor … a constitutional highway accident waiting to happen.

A nightmare scenario

Imagine that in 2026 Democrats take the House, and then in 2027, something happens to President Trump.

Under the 25th Amendment, Vice President Vance would become president, and in theory he'd nominate a new vice president to replace himself.

But who could he choose that both houses would confirm if one is controlled by the other party?

With no sitting vice president, the Speaker — let’s say Hakeem Jeffries, since he's the Democratic leader now — is next in line.

This would mean that the death or incapacity of Vance as president could flip partisan control of the executive branch. That’s never happened in U.S. history.

Eight presidents have died in office (four assassinations, two natural causes, and two natural causes but arguably suspicious, and we weren't really good at autopsies back in 1850 and 1923), but party control has never switched in the process.

That alone should be reason for reform. (It's an almost 18% "didn't live out their term" rate, by the way.)

But it’s not the biggest problem.

The “officer” clause

Here’s what I wrote five years ago, quoting legal scholars:

The Constitution’s Succession Clause says Congress can decide “what Officer shall then act as President” if both the president and VP can’t serve.

The argument is that “Officer” doesn’t mean “any official,” but only executive branch officers. That would exclude the Speaker and the Senate’s president pro tempore.

Are they right? Who knows? Courts probably couldn’t weigh in until it actually happened. But if they were right, succession would skip to the Secretary of State, because the Constitution trumps statute.

Put it together and you have a scenario with two people claiming to be acting president at the same time. A leadership crisis unlike anything since the Civil War. Courts might sort it out — eventually — but who is commander in chief in the meantime?

Who issues orders, signs bills, makes nominations, sits in the Oval Office?

The fix

This jumped back into my head after Charlie Kirk was murdered, and after two assassination attempts on Trump. Add in threats against Biden and Harris, and even Marine One’s recent emergency landing.

The danger isn’t just lone wolves. Imagine foreign adversaries deciding it’s in their interest to incapacitate Vance specifically to throw the U.S. into chaos, even temporarily.

In practice, I suppose a court might use an emergency offramp to recognize the Secretary of State as acting president until the whole thing was sorted out. At least that person would undeniably be an “officer.”

But this would be a massive fight, and even twelve hours without a legally recognized commander in chief could be disastrous.

Hence, the idea of rewriting the succession law. As Jack Goldsmith and Ben Miller-Gootnick argued on the Lawfare blog in 2020, go straight from vice president to secretary of state, then down through the cabinet.

But — and here’s the key — delay it. As I put it in 2020:

“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.”

Obviously that doesn't help us now, but then again, five years in the future from five years ago would have been now.

Also, not to end on an even more nihilistic note, but I'm aware there's almost no chance that we'll address this anytime soon. I mean, there's a lot else going on.

So, here's to seeing you here and revisiting this yet again in 2030.

And here’s to hoping it’s still just an irrational nagging concern.

I'll still love you.

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7 other things worth knowing

• I hadn’t even remembered this trial was going on when I wrote today’s letter, but: A federal jury convicted Ryan Routh of the attempted assassination of Donald Trump last year at his South Florida golf course. He faces up to life in prison. After the guilty verdicts were read but before jurors had departed, Routh attempted to stab himself in the neck with a pen. U.S. Marshals quickly subdued him. (NPR)

• Trump delivered a critical address to the United Nations General Assembly, charging the institution with failing to act to solve spiraling conflicts and immigration woes and deriding its “empty words” that “don’t solve war.” Lots of notable quotes here, but two worth mentioning: “I’m really good at this stuff,” the president said, and “Your countries are going to hell.” (NBC News)

• A massive illegal electronic device network capable of crippling cell towers and jamming 911 calls across New York City was uncovered by the Secret Service. Officials warned the trove of devices they discovered had the capability of carrying out a wide-range of telecommunications attacks — including spamming networks with up to 30 million text messages a minute — that could have had “catastrophic” consequences. (NY Post)

• Health experts from around the globe joined the chorus of doctors and organizations pushing back against the Trump administration’s announcement this week linking the use of acetaminophen — the active ingredient in Tylenol and many cold and flu medications — during pregnancy to an increased risk of autism in children. Listed among those saying there was “no new evidence” justifying the idea are the chief medical officers of the European Union, United Kingdom, Australia, along with several U.S. non-governmental organizations. (CBS News)

• Hundreds of people swam in the Chicago River this week, the first open water swim in the river in 98 years, as a benefit for ALS research. The Chicago River, which famously runs through the city’s downtown and is annually dyed green for St. Patrick’s Day, had a long history of pollution, but decades of cleaning efforts, the river is now considered safe. (USA Today)

• A bull moose that fell into a 100-year-old abandoned well in Maine was pulled to safety during an elaborate five-hour rescue. “He walks over and, through the thick alders and bushes, he saw the antlers, just the antlers peeking out,” said the sister of the man who organized the rescue. “He knew that an animal of the size, he was going to need some back up just in case it was, you know, injured or just stuck there.” (AP)

• And now for something utterly and completely different: “I changed these 5 settings on my TV to significantly improve the picture quality.” (ZD Net)

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Thanks for reading. Photo by Tobi Oluremi on Unsplash. See you in the comments.