Kentucky Law Journal Volume 90 | Issue 2 Article 4 2001 Structural Principles and Presidential Succession Howard M. Wasserman Florida State University Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the President/Executive Department Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Wasserman, Howard M. (2001) "Structural Principles and Presidential Succession," Kentucky Law Journal: Vol. 90 : Iss. 2 , Article 4. Available at: https://uknowledge.uky.edu/klj/vol90/iss2/4 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Structural Principles and Presidential Succession* BY HOWARD M. WASSERMAN" INTRODUCTION n a way it was like a bloodless coup. In March 1981, President Ronald Reagan was undergoing emergency surgery after being wounded in an assassination attempt, and Vice President George H.W. Bush was outside of Washington. Secretary of State Alexander Haig announced at a White House press briefing, "I am in control here, in the White House," suggesting that, under the Constitution, he was next in the line of succession.' Most White House officials knew Haig was wrong.2 First, and often overlooked, there was, in fact, no vacancy in the vice presidency at that time and no need for Haig, or anyone else, to assume control in the White House; the fact that Vice President Bush was not in Washington did not render him "disabled" from assuming the presidency while Reagan was undergoing surgery. Second, the issue of simultaneous vacancies, even *Copyright C 2001 Howard M. Wasserman. ""Visiting Assistant Professor, Florida State University College of Law. J.D. 1997, B.S. 1990, Northwestern University. Thanks to Martin Redish, Steven Calabresi, Samantha Fisherman, Mark Josephson, and Matthew Umhofer for their reviews of earlier drafts. Earlier versions of this Article were presented to the faculties at Willamette University School ofLaw, Rutgers-Camden School of Law, Chicago-Kent College of Law, and Florida State University College of Law; my thanks for their comments and suggestions. Thanks to Jennifer, for everything else. ' See William F. Brown & Americo R. Cinquegrana, The Realities of Presi- dentialSuccession: "The EmperorHas No Clones," 75 GEo. L.J. 1389, 1391-92 (1987); see also Richard V. Allen, The Day Reagan Was Shot, THE ATLANTc MONTHLY, Apr. 2001, at 64-66 (discussing meetings and conversations among cabinet members and presidential aides after Reagan was shot, including Haig's assertion that he was next in the line of succession during meetings in the White House Situation Room). 2 See Allen, supranote 1, at 66. KENTUCKY LAW JOURNAL [VOL. 90 temporary ones, in both the presidency and the vice presidency is not controlled by the Constitution, but rather by congressional statute? Third, the statute, codified at 3 U.S.C. § 19, actually places the Speaker of the House of Representatives next in line, followed by the President Pro Tempore of the Senate.' The spectacle of March 1981 illustrates the tension, uncertainty, and confusion that arise with regard to many issues and questions of selection. On one hand, as Herbert Wechsler once suggested, structural and selec- tion issues often fall by the wayside ofjudicial and scholarly consideration, given our focus on the power-distribution provisions of the Constitu- tion.5 The Constitution did create and structure a government; it established three distinct and co-equal branches and prescribed the qualifications for the various offices,6 the terms, timing, and manner of selecting 3See U.S. CONST. art. II, § 1,cl. 6 ("Congress may by Law provide forthe Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."); 3 U.S.C. § 19 (1994) (establishing order of double-vacancy succession); see also Brown & Cinquegrana, supra note 1, at 1431-35; Americo R. Cinquegrana, PresidentialSuccession Under3 U.S.C. § 19 andthe SeparationofPowers: "Ifat FirstYou Don'tSucceed Try, Try Again, " 20 HASTiNGS CONST. L.Q. 105, 110-14 (1992). 4See 3 U.S.C. § 19(a), (b). ' See Herbert Wechsler, The PoliticalSafeguards of Federalism:The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REv. 543, 543-44 (1954). 6See U.S. CONsT. art. I, § 2, cl. 2 ("No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen."); id § 3, cl. 3 ("No Person shall be a Senator who shall not have attained to the Age ofthirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."); id at art. II, § 1, cl. 5 ("No Person except a natural born Citizen... shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."); id.at art. I, § 6, cl. 2 ("[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-01 (1995) (holding that the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress and that the states could not establish additional qualifications). 2001-2002] STRUCTURAL PRINCIPLES officials,7 the manner of succession and filling vacancies,8 and the power of Congress to fill any structural gaps with legislation.' On the other hand, selection issues rarely are the subjects of constitutional litigation, primarily because there can be no real legal dispute about many of these provisions--the requirements that the President be thirty-five years old, that Senators serve six-year terms, or that House members be popularly elected are clear and not open to much interpretation or dispute as to their meaning. Selection rules and procedures may be established and detailed in the Constitution itself, as most procedures were. They also may be established pursuantto'Tramework legislation"--statutes passed according to ordinary 7 See U.S. CONST. art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States... .");i d at amend. XVII, cl. 1 (providing that Senators shall be "elected by the people thereof, for six years"); id at art. II, § 1, cl. 1-2 (providing that the President shall hold office for four years and be chosen by Electors appointed by each state); id at amend. XXII, § I ("No person shall be elected to the office of the President more than twice.... ."); id at art. mH,§ 1 e"he Judges... shall hold their Offices during good Behaviour..."); id at art. I, § 4, cl. 1 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof .... ."); see also U.S. Term Limits, 514 U.S. at 783 (striking down state law imposing term limits on members of Congress). 8 See U.S. CONST. art. 1, § 2, cl. 4 ("When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies."); id at amend. XVII, cl. 2 (providing that when "vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs ofelection to fill such vacancies," provided that the state executive could make temporary appointments until the vacancy could be filled by election); id. at art. II, § 1, cl. 6 ("In Case of the Removal of the President from Office, or of his Death, Resignation or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.... ."); id at amend. XXV, § 1 ("In case of the removal of the President from office or of his death or resignation, the Vice President shall become President."). 9See Steven G. Calabresi & Salkrishna B. Prakash, The President'sPower to Execute the Laws, 104 YALE L.J. 541, 567 (1994) (noting that some structural questions could be "punted to Congress and to future generations"); Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, PluralJudiciary, 105 HARV. L. REV. 1153, 1168 (1992) (stating that Congress's power to structure the executive branch derives from the Necessary and Proper Clause). KENTUCKY LAW JOURNAL [VOL. 90 Constitutional requirements of Bicameralism and Presentment"0 that fill in the structural skeleton on those selection issues that have been left to Congress, support and implement the Constitution's structural goals, and further the constitutional allocation of authority." Succession in the event of a vacancy in both the presidency and vice presidency is one selection issue that was punted to the choices of Congress and that remains subject 2 to change through ordinary legislative processes. In considering the selection of federal officials and selection proce- dures, we seek answers to two questions: 1) how do we select the people who will fill positions in the Federal government; and 2) why do we choose a particular selection procedure? The answer to these questions requires consideration of the Constitution's four underlying structural goals or principles, which are implicated in designing, creating, and operating a procedure for selecting government officers.