An October Horror Story: The Presidential Succession Act and The Twenty-fifth Amendment
October is a traditional month for horror stories, and so I thought that I’d share a tale of horror that should curdle our blood. But unlike many Halloween tales, this is a story not of the undead or of Frankenstein’s monster or the like, but rather of zombie statutes and Frankensteinish combinations of Constitution and statutory text.
Our story begins in February, 2024. President Joseph Biden dies of a sudden stroke. A sad event, to be sure, but nothing freakish: an 81–year old man in the United States has a 7.2% of dying within one year according to the Social Security Administration’s actuarial tables. A President benefits from superior medical care and observation (and the general benefits of wealth), but also suffers from extreme stress and likely substantial sleep deprivation; in any event, any 81-year-old is at significant risk. Then-Vice President Kamala Harris is promptly sworn in as President of the United States, and the federal government proceeds without substantial disruption. She submits a nominee for Vice President to Congress for confirmation; however, under the terms of the Twenty-Fifth Amendment, Vice Presidential appointments must be confirmed by both houses of Congress. The Senate acts quickly to begin hearings, but the Republican House is unable to even choose its own Speaker, let alone consider confirming a nominee from the opposing party.
Disaster strikes in late March: a would-be assassin shoots President Harris, striking her in the lung. Rumors are that the assassin is connected to Iran or perhaps to Palestinian liberation activists striking at her because of the ongoing crisis in Israel and the fact that her husband is Jewish, although there are also rumors that the assassin was a Christian nationalist offended by the idea of someone with a partially-Hindu upbringing being President (despite the fact that President Harris was a practicing Baptist). In any event, precisely why she was targeted remains unclear while she undergoes treatment in a hospital.
The House of Representatives immediately begins a roll call vote on a hasty motion to elect Donald Trump, the presumptive presidential nominee of the Republican Party after strong performances in the primaries on Super Tuesday, as Speaker of the House. While the Constitutional text on electing the Speaker of the House is vague about the point, see U.S. Const. Art. I, Sec. 2, Para. 5, the general understanding is that the Speaker of the House does not need to be a Representative, and several non-members have received votes in elections for Speaker. The reason for the rapid action, of course, is that under the Presidential Succession Act, the first successor to the Presidency in the absence of a Vice President is the Speaker of the House.
While the House is voting, members of the Cabinet are quickly signing a letter declaring that President Harris is unable to discharge the duties of the Presidency, pursuant to Section 4 of the Twenty-Fifth Amendment. They submit the letter to the President pro tempore of the Senate and to the Speaker of the House pro tempore before the conclusion of the roll call vote on electing Trump Speaker of the House. However, the validity of this letter is in substantial doubt, because Section 4 requires that a letter declaring the inability of a President be sent by “the Vice President and a majority of … the principal officers of the executive departments…”, and while both President pro tempore of the Senate (and thus sometimes referred to as Acting Vice President) Patty Murray and the Vice Presidential nominee signed the letter, they’re still not legally the Vice President. Immediately upon her own receipt of the letter, Sen. Murray resigns from the Senate and takes the oath of office as Acting President.
Shortly after Sen. Murray purportedly becomes Acting President, the roll call vote in the House finishes. Less than an hour later, President Harris dies from her wounds. People who were present at the hospital differ as to whether she was ever conscious (and, if conscious, lucid) during the time subsequent to Trump’s election as Speaker of the House — a point that becomes a focus of subsequent litigation. In any event, upon her death, newly elected Speaker of the House Trump resigns the office of Speaker of the House and takes the oath of office as Acting President. He immediately pardons everyone involved in the January 6 efforts to obstruct Biden’s election as President, dismisses every political appointee in the federal government en masse, and declares that he will be making America great again by undoing the terrible crimes of the Obama and Harris presidencies. Various members of the cabinet seize on his apparent confusion between Biden and Obama (and other signs of mental infirmity) and submit another letter seeking to declare him as incapable of serving as President, although the general consensus is that, if he was validly inaugurated, they cannot still have the authority to act as heads of the executive departments.
As if the problem of two different people seeking to exercise the office of President at the same time wasn’t messy enough, Secretary of State Blinken, on the advice of the Attorney General, takes the oath of office as Acting President as well. The Attorney General sides with the substantial legal authority that suggests that it is unconstitutional for the Speaker of the House or the President pro tempore of the Senate to be designated in the presidential succession; under this interpretation, Congress’s power under Article II to declare “what Officer shall then act as President” refers only to “Officers” in the sense of executive branch officers appointed by the President under the authority of Article II, Sec. 2, Para. 2. In any event, three people each assert that they are Acting President of the United States, each with substantial legal claim to the office.
None of this is happening in a vaccuum. The troubles of the world continue onwards. Hezbollah begins launching additional strikes on Israel, hoping that the United States will not be able to act to protect Israel. Acting President(?) Trump’s announcement that the United States will no longer provide support to Ukraine’s war against the Russian invasion generates near panic among the US’s NATO allies, who fear that this means that the US will also not protect the Baltics and Poland if the war escalates. And, perhaps most ominously, China declares a blockade around the “rebellious province” of Taiwan.
Murray and Blinken act together in an effort to minimize confusion. They also construct a plan in which Murray will designate Blinken as Vice President; upon his confirmation, he would immediately displace her as President of the United States. He would then nominate her as Vice President, and not run for re-election, allowing her to become the presumptive Democratic Party nominee. Of course, the House is completely unwilling to take up this nomination — after all, the position of the Republican Party leadership in the House is that Donald Trump is the Acting President. They jointly undertake diplomatic efforts to mitigate the disruption in Europe and the Middle-East, a task aided by Blinken’s ties as Secretary of State. They also instruct Admiral John C. Aquilino, the Commander of the Indo-Pacific Command, to escort merchant vessels to Taiwan in defiance of the Chinese blockade.
Secretary of Defense(?) Lloyd Austin and the Joint Chiefs of Staff send a memo to the heads of each combatant command (cc:ed to all flag and general officers in the U.S. Armed Services) stating that, until civilian courts have resolved the question of who is lawfully Acting President, all military personnel should treat the orders of Secretary of Defense Austin as determinative. Their memo makes clear that while they acknowledge that there is a chance that they will be treated as acting mutinously for these actions, it is a matter of moral courage for the flag and general officers to take a principled stand to defend the concept of civilian authority, to defend the Constitution of the United States, and to protect the more junior men and women under their command from the fall-out of the legal struggle over who is the Acting President. In accord with this memo and SECDEF Austin’s instructions, Admiral Aquilino carries out Blinken and Murray’s orders.
The Chinese blockading fleet is unwilling to fire on American warships without express instructions from Beijing, and the first merchant ships break the blockade. Concluding that this will end with either independence or invasion, the President of Taiwan declares independence. Blinken and Murray immediately recognize the newly declared Republic of Taiwan, while Trump asserts that the United States has no interests in Taiwan worth risking war with China over, and that Admiral Aquilino’s actions as commander of Indo-Pacific Command in defiance of his orders are treason. Blinken and Murray double down, deploying a Marine regimental combat team to Taiwan to defend “our democratic ally.” This is widely understood as a trip-wire: a force, similar to forward deployed troops in South Korea and NATO allies, that exists to ensure that it is impossible for an invasion to take place without killing US personnel and pulling the US into war. While the Marine RCT deploys, nearly 10% of the enlisted personnel refuse to deploy, following Acting President(?) Trump’s orders(?) that they not get off their boats.
Back in the United States, civil unrest, demonstrations, and political violence is erupting across the nation. To people on either (any) side of the questions of who is Acting President, it seems obvious that people on the other side are attempting a coup d’etat. Multiple people are attempting to exercise the authority of the federal government at all levels in contradiction to each other. Various governors are calling out the National Guard to ensure that their preferred government remains in power.
Litigation over the question of who is the lawful Acting President has begun in many different districts. It quickly makes its way to the Supreme Court, but even with an understanding of the crisis, it’s hard for the courts to act faster than over the course of a few days — and even hours of confusion matter. Moreover, the Court is split on the issue of who is properly Acting President — Justices Thomas and Alito strongly assert that Trump is Acting President, while Justices Sotomayor, Kagan, and Jackson are solidifying behind the position that Blinken is the proper Acting President. Meanwhile, Chief Justice Roberts is trying to assemble a plurality for the position that Speaker of the House pro tempore Patrick McHenry is the actual correct Acting President — scared by the ever-increasing erraticism of Trump and the dicey foreign policy situation, he’s looking for an outcome that results in a Republican Acting President who isn’t Trump. While much of the litigation centered around the factual question of whether the incapacity or vacancy arose before or after Trump was elected as speaker, along with the legal questions of whether Trump could constitutionally become Speaker without being a member of the House and whether the Presidential Succession Act’s provisions including the Speaker and President pro tempore of the Senate are constitutional, few people seem to actually think that the merits of those questions will outweigh the outcome in the minds of the justices.
Across the Pacific Ocean, President Xi Jinping of the People’s Republic of China presides over a meeting of the Central Military Commission to determine whether they should respond with immediate military force to the unacceptable declaration of independence (and the functional invasion of Chinese territory by the US Marines), or whether they should wait to see whether Trump will end up as Acting President and abandon Taiwan, allowing its reconquest without an American military response.
That’s where I’ll conclude this horror story, with both the nation and the world teetering on the verge of disaster.
There is a deep irony that both the Twenty-Fifth Amendment and the Presidential Succession Act were drafted with care and awareness of the importance of handling a crisis smoothly, and yet they are each disastrously and obviously flawed. It would be funny if it were not a train-wreck waiting to happen. Fixing the Twenty-Fifth Amendment would require a new amendment to the Constitution, but we ought to at least be able to clean up the Presidential Succession Act. An assassination or medical emergency causing a switch in partisan control in the presidency is clearly undesirable, as demonstrated historically by the terrible consequences of Lincoln’s assassination. In addition to the disruption that this would threaten, it also incentivizes assassination in a way that we should want to avoid. The current Presidential Succession Act also creates deeply dubious constitutional doubts that can’t be resolved until after a crisis has already begun. Far better to clear up things in advance by removing the Speaker and the President pro tempore from the succession order. I didn’t even bring in some of the other flaws — while Patty Murray is 71 and I believe fully functional, until her death Sen. Diane Feinstein was both the person tradition would have made President pro tempore and also manifestly unfit to serve in the Senate, let alone as Acting President. A position that is traditionally held by the most senior Senator of the majority party in a generally geriatric institution is frequently someone who would not be able to serve as an effective Acting President, especially if the vacancy resulted from an independent crisis. Also, it’s somewhat unclear whether an acting cabinet secretary who was appointed and confirmed to a different executive position is eligible to succeed.
We need to clean up the Presidential Succession Act: Remove the Congressional officers from the Succession list and make clear that only cabinet officers who were confirmed in their cabinet position are part of the succession.
