In today’s Washington Post, Norman Ornstein argues that the current law on Presidential succession, which has members of the Congressional leadership succeeding to the Presidency if the Vice-President dies, doesn’t make sense and needs to be changed:

First, Ornstein points out that the law itself is probably unconstitutional:

When the Second Congress enacted the first presidential succession act, it was highly controversial. Congress was dominated by Federalists; they did not want Secretary of State Thomas Jefferson, a leader of the rival Democratic-Republican Party, to be next behind the vice president. They turned to their own congressional leaders, a solution that was immediately challenged by James Madison, among others, as unconstitutional.

The Constitution says Congress can create a line of succession from among “Officers” of the United States, clearly meaning executive branch officials. But it also says that no one except the vice president shall serve simultaneously in the executive and legislative branches. The congressional majority brushed aside that argument. But it is a position accepted by most constitutional scholars.

One response to this argument, of course, is that the President Pro Tem or Speaker could (and probably would) resign their Congressional position before taking office as Acting President. However, that ignores the clear text of the Constituion and underscores another problem with the succession law — shouldn’t the rules of Presidential succession be part of the Constitution rather than just a statute passed by Congress ?

In addition to the Constitutional problems, Ornstein points out the political problems inherent in the current line of succession:

First, congressional leaders frequently are of the opposite party and viewpoint of a president; if a president and vice president were to die at the beginning of a term, the country would have four years of a president representing the opposite of what it voted for — a situation made even worse if the change in direction came as a result of a terrorist action. Southern pro-slavery insurgents actually plotted to kill everyone in the line of succession to Abraham Lincoln to change the policy and political direction of the Union.

Second, congressional leaders have a built-in conflict of interest. When Andrew Johnson was impeached by the House and tried in the Senate, he escaped removal from office by one vote — and among those who voted against him was the Senate president pro tempore, Benjamin Wade of Ohio, who would have succeeded Johnson had he been ousted.

The final problem, as Ornstein also points out, is that everyone in the current line of succession resides in Washington. Dick Cheney, or whoever the next Vice-President will be, cannot spend his entire term secluded at an “undisclosed location.” Right now, the next President could end up being whichever Cabinet Secretary is lucky enough to be travelling the day that Washington is destroyed by a terrorist bomb. That, quite honestly, is unacceptable.

When it comes to the issue of who would become President in the event of a national disaster, September 11th was a wake-up call that nobody has bothered to answer.