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Ensuring the Stability of Presidential Succession in The Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Reports Twenty-Fifth Amendment Archive 6-2012 Ensuring the Stability of Presidential Succession in the Modern Era: Report of the Fordham University School of Law Clinic on Presidential Succession Fordham Law School Clinic on Presidential Succession Follow this and additional works at: http://ir.lawnet.fordham.edu/twentyfifth_amendment_reports Part of the Law Commons Recommended Citation Fordham Law School Clinic on Presidential Succession, "Ensuring the Stability of Presidential Succession in the Modern Era: Report of the Fordham University School of Law Clinic on Presidential Succession" (2012). Reports. 3. http://ir.lawnet.fordham.edu/twentyfifth_amendment_reports/3 This Article is brought to you for free and open access by the Twenty-Fifth Amendment Archive at FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Reports by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. ENSURING THE STABILITY OF PRESIDENTIAL SUCCESSION IN THE MODERN ERA: Report of the Fordham University School of Law Clinic on Presidential Succession This advance draft was prepared by students in the Fordham University School of Law Clinic on Presidential Succession and is subject to revision before publication. The official version of this report will be published in Volume 81 of theFordham Law Review. Report of the Fordham University School of Law’s Clinic on Presidential Succession B ADVANCE DRAFT- Cite as: 81 Fordham L. Rev. (forthcoming Oct. 2012) ADVANCE DRAFT- Cite as: 81 Fordham L. Rev. (forthcoming Oct. 2012) ENSURING THE STABILITY OF PRESIDENTIAL SUCCESSION IN THE MODERN ERA: Report of the Fordham University School of Law Clinic on Presidential Succession June 2012 This advance draft was prepared by students in the Fordham University School of Law Clinic on Presidential Succession and is subject to revision before publication. The official version of this report will be published in Volume 81 of theFordham Law Review. ADVANCE DRAFT- Cite as: 81 Fordham L. Rev. (forthcoming Oct. 2012) S UMMARY OF CONTENTS I. An Accompanying Letter ...............................................................................8 II. Acknowledgments ...........................................................................................9 III. Foreword .........................................................................................................10 IV. Executive Summary ........................................................................................11 V. Inability and Presidential Succession Issues ........................................16 VI. Line of Succession Issues ..............................................................................27 VII. Pre-Inauguration Succession Contingencies .......................................35 VIII. Summary of Recommendations ...................................................................44 APPENDICES A. Constitutional, Statutory, and Party Rule Provisions .....................46 B. Executive Declarations of Inability, Letter Agreements & Section 3 Letter Precedents ....................................................................54 C. Legislative History of the Presidential Succession Acts ................60 D. Post-9/11/2001 Proposals and Presidential Succession Initiatives .........................................................70 E. Acting Cabinet Secretaries and Acting Legislative Leadership ..................................................................78 F. Charts ...............................................................................................................81 G. Student Profiles ..........................................................................................103 H. Bibliography .................................................................................................105 2 Ensuring the Stability of Presidential Succession in the Modern Era: ADVANCE DRAFT- Cite as: 81 Fordham L. Rev. (forthcoming Oct. 2012) TABL E OF CONTENTS I. An Accompanying Letter ...............................................................................8 II. Acknowledgments ...........................................................................................9 III. Foreword .........................................................................................................10 IV. Executive Summary ........................................................................................11 V. Inability and Presidential Succession Issues ........................................16 . A Introduction ........................................................................................................................................16 B. The wenty-FifthT Amendment .....................................................................................................16 1. History of the Twenty-Fifth Amendment ..............................................................................16 2. Applications of the Twenty-Fifth Amendment .....................................................................17 C. Contingencies Not Addressed by the Twenty-Fifth Amendment ......................................17 1. Inability of the President in Certain Circumstances ...........................................................18 2. Inability of the Vice President in Certain Circumstances ..................................................18 3. Inability of the Acting President in Certain Circumstances ..............................................19 D. Recommendations ............................................................................................................................19 1. Statute ...........................................................................................................................................19 a. Congressional Authority .....................................................................................................20 b. The Role of the Next in the Line of Succession in Determining Incapacity .....................................................................................................21 c. Summary ..................................................................................................................................21 2. Executive Action .........................................................................................................................22 a. Historical Support for Executive Declarations of Inability .......................................22 b. Summary .................................................................................................................................23 3. Other Options ..............................................................................................................................23 a. Vice-Presidential Inability ...................................................................................................23 VI. Line of Succession Issues ..............................................................................27 . A Introduction ........................................................................................................................................27 B. Constitutional Concerns ................................................................................................................27 1. Constitutionality of the Legislative Line of Succession ........................................................27 2. Presidential Qualifications .......................................................................................................29 3. “Bumping” Provision .................................................................................................................30 C. Uncertainty in Times of Presidential Succession......................................................................30 1. Acting Secretaries in the Line of Succession and Structural Issues Raised .......................30 D. Additional Concerns ........................................................................................................................31 1. Democratic Pedigree ......................................................................................................................31 2. Party Continuity ............................................................................................................................32 3. Historical Precedent .......................................................................................................................32 . E Recommendations For Future Action ............................................................................................32 1. Executive Line of Succession ........................................................................................................32 2. Binary Line of Succession ............................................................................................................32 Report of the Fordham University School of Law Clinic on Presidential Succession 3 ADVANCE DRAFT- Cite as: 81 Fordham L. Rev. (forthcoming Oct. 2012) TABL E OF CONTENTS (continued) . F Recommendations For Immediate Action ....................................................................................33 1. Acting Secretaries ..........................................................................................................................33
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