The Contemporary Presidency: Unity in the Executive and the Presidential Succession Act

Article excerpt

Nearly three hundred tons of aircraft and fuel struck the east lace of the building at a speed of three hundred knots. The aircraft disintegrated on impact. No less fragile than a bird, its speed and mass had already fragmented the columns outside the walls. Next came the building itself. As soon as the wings broke up, the engines ... shot forward, one of them actually smashing into and beyond the House Chamber.... The entire east face of the building's southern half was smashed to gravel, which shot westward--but the real damage took a second or two more, barely time for the roof to start falling down on the nine hundred people in the chamber ...

The passage quoted above does not come from a government report speculating on the target of the fourth hijacked airliner on 9-11, nor is it a post-9-11 analysis of terrorist nightmare scenarios. It comes from a Tom Clancy techno-thriller, Debt of Honor, published in 1994 (p. 762). In it, a commandeered jet slams into the Capitol while the president addresses a joint session of Congress, propelling its hero, just-confirmed Vice President Jack Ryan, into the presidency. Ryan himself barely escapes death if the attack. The resulting devastation sets the stage for Clancy's next volume, Executive Orders, in which the new President Ryan has to reconstitute the government and lead a nation under attack.

Article II of the Constitution provides for Congress to determine "what officer shall act as President" should both the president and vice president be killed or incapacitated at the same time. This situation is known as a "double vacancy." Concern about the continuity and stability of government in such a crisis goes all the way back to the founding era. The first law providing for the event of a double vacancy was passed in 1792, and it has been altered twice in American history. While it is now well established that the vice president immediately takes over in the event of the death of a president, the nation has been without a vice president 18 times in its history, more than once for several years at a time. Only providence has prevented a double vacancy from occurring. To a certain extent, the Twenty-Fifth Amendment has ameliorated the danger of a double vacancy. Whereas presidents such as Chester Arthur, Theodore Roosevelt, and Harry Truman served the vast majority of at least one term without a vice president, the Constitution now allows the president to solve the problem of such a vacancy by nominating a new vice president, making a double vacancy highly unlikely.

Highly unlikely, however, is not impossible. Although there was always a danger during the Cold War that the federal government could be decimated in a nuclear exchange, it took the terrorist attacks on September 11, 2001 to drive home the lingering vulnerability of the nation's leadership. Fanciful scenarios like those depicted in Tom Clancy novels no longer seem far-fetched. In a quiet subplot to the more visible investigations of the 9-11 attacks, various forces have attempted to address shortcomings in the current law. Legislation currently working its way through Congress would catapult Homeland Security Secretary Tom Ridge to eighth in the presidential line of succession. In 2002, California Representative Brad Sherman introduced H.R. 3816, the Presidential Succession Act of 2002, which sought to revise the current law by allowing the president to designate majority or minority leaders in the House and Senate to serve as second and third in the line of succession, depending on partisan affiliation (Witcover 2002, 21A; Sherman 2002). The American Enterprise Institute and Brookings Institution have created the Continuity of Government Commission, which is studying the issue of continuity of governmental institutions in the event of a catastrophic attack. (1)

The issue of continuity is not exclusively a matter of keeping institutions operational. One of the concerns about the Presidential Succession Act of 1947 involves the question of continuity of policy. …