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S. HRG. 108–928 

ENSURING THE CONTINUITY OF THE UNITED 

STATES GOVERNMENT: THE PRESIDENCY 

JOINT HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

AND

COMMITTEE ON RULES AND 

ADMINISTRATION 

UNITED STATES SENATE 

ONE HUNDRED EIGHTH CONGRESS 

FIRST SESSION 

SEPTEMBER 16, 2003 

Serial No. J–108–40 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

COMMITTEE ON RULES AND ADMINISTRATION

TRENT LOTT, MISSISSIPPI, Chairman 

TED STEVENS, Alaska 

MITCH MCCONNELL, Kentucky 

THAD COCHRAN, Mississippi 

RICK SANTORUM, Pennsylvania 

DON NICKLES, Oklahoma 

KAY BAILEY HUTCHISON, Texas 

WILLIAM H. FRIST, M.D., Tennessee 

GORDON SMITH, Oregon 

SAXBY CHAMBLISS, Georgia 

CHRISTOPHER J. DODD, Connecticut 

ROBERT C. BYRD, West Virginia 

DANIEL K. INOUYE, Hawaii 

DIANNE FEINSTEIN, California 

CHARLES E. SCHUMER, New York 

JOHN B. BREAUX, Louisiana 

TOM DASCHLE, South Dakota 

MARK DAYTON, Minnesota 

RICHARD J. DURBIN, Illinois 

CAROLE J. BLESSINGTON, Majority Chief Counsel 

KENNIE L. GILL, Democratic Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 3 

prepared statement .......................................................................................... 44 

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 6 

Dodd, Hon. Christopher J., a U.S. Senator from the State of Connecticut ......... 21 

prepared statement .......................................................................................... 46 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 15 

prepared statement .......................................................................................... 48 

Lott, Hon. Trent, a U.S. Senator from the State of Mississippi .......................... 1 

prepared statement .......................................................................................... 66 

WITNESSES 

Amar, Akhil, Southmayd Professor of Law and Political Science, Yale Law 

School, New Haven, Connecticut ........................................................................ 6 

Baker, M. Miller, Esq., McDermott Will & Emery, Washington, D.C. ............... 12 

Fortier, John C., Executive Director, Continuity of Government Commission, 

and Research Associate, American Enterprise Institute, Washington, D.C. .. 9 

Wasserman, Howard M., Assistant Professor of Law, Florida International 

University College of Law, Miami, Florida ........................................................ 14 

SUBMISSIONS FOR THE RECORD 

Amar, Akhil, Southmayd Professor of Law and Political Science, Yale Law 

School, New Haven, Connecticut, statement ..................................................... 30 

Baker, M. Miller, McDermott, Will and Emery, Washington, D.C., statement .. 33 

Fortier, John C., Executive Director, Continuity of Government Commission, 

and Research Associate, American Enterprise Institute, Washington, D.C., 

statement .............................................................................................................. 49 

Lewis, R. Doug, Executive Director, the Election Center, Houston, Texas, 

statement .............................................................................................................. 60 

Wasserman, Howard M., Assistant Professor of Law, Florida International 

University College of Law, Miami, Florida, statement ..................................... 69 

(1) 

ENSURING THE CONTINUITY OF THE UNITED 

STATES GOVERNMENT: THE PRESIDENCY 

TUESDAY, SEPTEMBER 16, 2003, 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, COMMITTEE ON RULES AND ADMINISTRATION, Washington, DC. 

The Committees met, pursuant to notice, at 9:30 a.m., in room 

SR–325, Russell Senate Office Building, Hon. Trent Lott and Hon. 

John Cornyn, presiding. 

Present: Senators Lott, Cornyn, DeWine, Dodd, and Feingold. 

OPENING STATEMENT OF HON. TRENT LOTT, A U.S. SENATOR 

FROM THE STATE OF MISSISSIPPI 

Chairman LOTT. The hearing will come to order. 

Thank you all for being here this morning. I know that there are 

a number of people that are interested in this issue that have responsibilities on the floor of the Senate right now. Senator Feingold 

did leave to go down to do a statement and will be returning shortly, and we expect other Senators will be joining us as we go forward this morning. 

This is a joint hearing, and I am really pleased to be able to cochair this with the Senator from Texas, Senator Cornyn, who is 

Chairman of the Subcommittee with jurisdiction in this area, and 

who has really been focusing on continuity of Government and succession issues, and has brought a vigor and an interest in this that 

really has been very helpful. 

As I have gotten into this subject myself, I have become more 

and more interested and more and more concerned about where we 

are today in terms of Presidential succession. And so I think it is 

appropriate we have these hearings. I want to thank our witnesses 

for being here today. I will give you an appropriate introduction in 

a few minutes, and we will look forward to hearing from you. 

I want to begin with an interesting historical anecdote about the 

Senate Rules and Administration Committee and the issue of Presidential succession. After a major Senate reorganization in 1946, 

the Senate Rules Committee was merged with the Senate Privileges and Elections Committee, and the Senate Rules and Administration Committee was officially created in January 1947. 

The first public hearings held by the newly created Committee 

were on the subject of Presidential succession and how the system 

should be remodeled to deal with the advent of the atomic bomb, 

interestingly enough, the death of President Franklin Roosevelt, 

and other issues that were related to this subject. 

2 

Since those 1947 hearings, no substantive legislation has been 

passed to deal with the gaps in the current Presidential succession 

system. So I think it is way past time for us to have these hearings, consider these matters, and hopefully even find a way to act. 

There are many areas where there is a gap in our planning for unexpected disasters, and this is obviously right at the top of that list. 

I have long been interested in this subject. Earlier this year, the 

Rules and Administration Committee considered and reported out 

S. 148, a bill by Senator DeWine and others, which added the Department of Homeland Security Secretary Tom Ridge to the line of 

Presidential succession. As you can see from the chart—do we have 

our chart up here?—Table 1, Secretary Ridge would be eighth in 

line of succession after the Attorney General. This bill has already 

passed the full Senate and is awaiting action in the House. 

Given the circumstances of the world today, it is vitally important that we have a system of Presidential succession that operates 

efficiently and effectively with minimal interruption. Since September 11, 2001, Congress has been studying all aspects of our 

Government’s operations to ensure that we continue to function in 

the event of a catastrophe. 

The current statutes governing the Presidential succession system, as we have already noted, have not been dealt with since 

1947. President Harry Truman was very insistent on this area 

being considered, but as a result of what happened with Harry 

Truman becoming President, the Vice Presidency remained vacant 

from 1945 to 1949. After several years of work from President Truman, Congress finally amended the Presidential succession statutes. As a result, the Presidential Succession Act of 1947 was 

adopted, and it is still in force today. 

Amazingly, the United States has been without a sitting Vice 

President on 18 separate occasions. As recently as 1963, when Lyndon Johnson ascended to the Presidency as a result of the assassination of President Kennedy, we did not have a Vice President 

from 1963 to 1965. And during Johnson’s Presidency, many people 

worried about the situation. If a tragedy should befall President 

Johnson, what would happen? And we might have been faced with 

a difficult situation replacing the President as there was no Vice 

President and the sitting speaker, John McCormack, born in 1891, 

and President pro tem Carl Hayden, born in 1877, were certainly 

well advanced in years. 

In 1965, as a result of Johnson’s ascension to the Presidency with 

no Vice President waiting in the wings, the 89th Congress proposed 

the 25th Amendment to the Constitution. This amendment is a 

critical piece of the succession puzzle as we know it today, and we 

have used it twice already, when Jerry Ford was selected as Vice 

President and ultimately he became President, and then with the 

selection of Nelson Rockefeller. I was on the House Judiciary Committee at the time, Senator Cornyn, and was the first one to have 

an opportunity—on the Committee that had the first opportunity 

to deal with the confirmation process of a Vice President under the 

25th Amendment. 

While the issue of Presidential succession has just recently regained the national spotlight, this issue has been debated and discussed over the years. In fact, during those very first hearings in 

3 

1947, the Chairman of the Rules and Administration Committee, 

Senator Wayland Brooks of Illinois, proposed forming a joint committee to deal specifically with the issue of Presidential succession. 

And there have been a plethora of succession issues that have been 

proposed over the years but no actions taken. 

When I have looked at the hearings on that, there are some very 

interesting quotes from the Senators that were involved in that, 

and they apply to today. Of course, in those days, they were worried just about the atom bomb. Well, you know, that is still a factor 

we have to consider, a dirty bomb or a nuclear bomb or some other 

travesty that could occur, and we could have a real mess on our 

hands. 

Another problem with it, of course, is the bumping procedure 

that might be employed whereby, you know, the Speaker might become President for a while, but then once a Vice President would 

be selected, I guess the Speaker would be bumped back to the position he had previously held. There would be a problem with how 

an interim Speaker would be selected. A real musical chairs could 

occur. 

I think the area that really is the most interesting is the fact 

that even though it was not always the case, we have Members of 

Congress in the line of succession. I understand from the readings 

that I have been doing that that issue was never really settled by 

our Founding Fathers and probably would pretty heatedly debated. 

But if you look back just in recent history where if something had 

happened to President Clinton and Vice President Gore, Newt 

Gingrich could have at one point become President. Then there 

would be a problem with selecting a new Speaker and what would 

you do with the Cabinet. It has been described as that sort of thing 

could cause not a succession but a revolution in a way. And we 

have got another chart up there that points out how many times— 

you know, what would have happened if this had occurred, both 

with Democrat and Republican administrations. 

For the past 50 years, there have been many, many years where 

you had Congress controlled by one party and the Presidency the 

other. So this is an area that we need to think about. 

I do not want to tell Senator Stevens this yet, but I really have 

come to the conclusion that congressional leaders should be taken 

out of the line of succession. We will have to make it prospective 

so that Denny Hastert and Ted Stevens will be happy with that. 

But I think it is a real problem, and I have for years. 

[The prepared statement of Senator Lott appears as a submission 

for the record.] 

So I am glad we are having this hearing. Again, I want to thank 

our panel of witnesses. But before I introduce them, let me call on 

Senator Cornyn, who has really been doing good work in this and 

other related issues, for his opening statement. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Well, thank you, Senator Lott, for those thorough introductory remarks, and thank you for your leadership on 

this important hearing. 

4 

As you recounted, the Senate Rules Committee has jurisdiction 

over the Presidential succession statute, and the Senate Judiciary 

Committee has jurisdiction over constitutional issues through the 

Subcommittee that I chair, the Senate Subcommittee on the Constitution, Civil Rights, and Property Rights. So today’s joint hearing of the two Committees on the topic of Presidential succession 

is quite appropriate—and after 9/11, some 2 years later, quite important. 

I want to thank Senator Hatch, the Chairman of the Judiciary 

Committee, who, shortly after I spoke on this subject on the Senate 

floor, invited me to chair the hearings for the full Judiciary Committee, which, of course, I gratefully accepted. And I want to thank 

him again today for his leadership and for giving these issues the 

serious consideration that they deserve. 

Last Tuesday, I chaired the first in a series of hearings on continuity issues to examine serious weaknesses in our ability to ensure the continuity of Congress. Fortunately, with respect to today’s hearing, the Constitution gives us ample authority to ensure 

the continuity of the Presidency, even as it may be inadequate with 

respect to Congress itself. Unfortunately, however, the current 

Presidential succession law, enacted, as you heard from Senator 

Lott, in 1947, has long troubled the Nation’s top legal scholars, 

some of whom we have here today, across the political spectrum as 

both unconstitutional and unworkable. 

This is an intolerable situation. We must have a system in place 

so that it is always clear and always beyond doubt who the President is, especially in times of national crisis. 

Yet our current succession law fails badly under that standard. 

Imagine the following scenarios. 

The President and Vice President are both killed. Under the current law, next in line to act as President is the Speaker of the 

House. Suppose, however, that the Speaker is a member of the 

party opposite of the now deceased President and that the Secretary of State, acting out of party loyalty, asserts a competing 

claim to the Presidency. The Secretary argues that Members of 

Congress are legislators and, thus, are not officers who are constitutionally eligible to serve as President. Believe it or not, the 

Secretary actually has a rather strong case, in my view. In fact, he 

can cite for support the views of James Madison, the father of our 

Constitution, who argued this precise point in 1792. 

Who is the President? Whose orders should be followed by our 

armed forces, by our intelligence agencies, and by domestic law enforcement bureaus? If lawsuits are filed, will courts accept jurisdiction? How long will they take to rule? How will they rule? And how 

will their rulings be respected? 

Or imagine, once again, the President and Vice President are 

killed, and the Speaker is a member of the opposite party. This 

time, however, the Speaker declines the opportunity to act as President in a public-minded effort to prevent a change in party control 

of the White House as a result of a terrorist attack. The Secretary 

of State thus becomes the Acting President. In subsequent weeks, 

however, the Secretary takes a series of actions that upset the 

Speaker. The Speaker responds by asserting his right under the 

statute to take over as Acting President. 

5 

The Secretary counters that he cannot constitutionally be removed from the White House by anyone other than the President 

or Vice President because under the Constitution he is entitled to 

act as President until the disability of the President or Vice President is removed or a President shall be elected. Confusion and litigation ensue. Again, who is President? 

Or imagine that the President, Vice President, and Speaker are 

all killed, along with numerous Members of Congress, for example, 

as a result of an attack during the State of the Union address. The 

remaining Members of the House, a small fraction of the entire 

membership representing just a narrow geographic region of the 

country and a narrow portion of the ideological spectrum, claim 

that they can constitute a quorum and then attempt to elect a new 

Speaker. That new Speaker then argues that he is Acting President. The Senate President pro tem and the Secretary of State each 

assert competing claims of their own that they are President. 

Again, who is President? 

Or, finally, notice that the President, Vice President, Speaker, 

Senate President pro tem, and the Members of the Cabinet all live 

and work in the greater Washington, D.C., area. Now imagine how 

easy it would be for a catastrophic terrorist attack in Washington 

to kill or incapacitate the entire line of succession to the Presidency 

as well as the President himself. Then who would be President? 

In each of these scenarios, we do not know for sure who the 

President is. A chilling thought for all Americans. In an age of terrorism and a time of war, this is no longer mere fodder for Tom 

Clancy novels or episodes of ‘‘West Wing.’’ 

These nightmare scenarios are serious concerns after 9/11. On 

that terrible day, Federal officers ordered dramatic evacuations of 

the White House, even shouting at White House staffers, ‘‘Run.’’ On 

that day, the Secret Service executed its emergency plan to protect 

and defend the line of Presidential succession for the first time ever 

in American history, according to some reports. In subsequent 

months, the President and Vice President were constantly kept 

separate for months and months after 9/11, precisely out of the fear 

that the continuity of the Presidency might otherwise be in serious 

jeopardy. 

I believe we must fix the Presidential succession law, and fix it 

now, so that these nightmare scenarios will never come true and 

will never again be able to haunt the American people or our form 

of Government. 

I look forward to the testimony, Mr. Chairman, of these exceptional witnesses and to learn what suggestions they might have for 

reforming the Presidential succession law. After all, we have had 

2 years since 9/11 to do this. Two years is too long, and the time 

to plan for the unthinkable is now. 

Thank you, Senator Lott. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

Chairman LOTT. Thank you, Senator Cornyn. 

Senator DeWine, we already gave you credit for your interest in 

these succession issues, and I have noted that your legislation, S. 

148, passed the Senate June 26th and is now pending before the 

6 

House. We would be glad to hear any opening statement you would 

like to make at this time. 

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator DEWINE. Mr. Chairman, I will be very, very brief. I just 

want to congratulate you and Senator Cornyn for holding this hearing. 

As you both have said, there are almost unimaginable scenarios 

that are not unimaginable, that certainly could happen, that compel us to take action and to address these concerns. And 2 years 

is too long. It is time for this Congress to take action. It is time 

for this Congress to address the concerns that we have. 

And so I am very, very happy that we are holding this hearing 

today. It is about time. 

Thank you. 

Chairman LOTT. Thank you, Senator DeWine. 

Our first witness is Professor Akhil Amar. Mr. Amar has served 

as a distinguished law professor at Yale University for two decades 

and has been extensively published on the issues of Presidential 

succession and the U.S. Constitution. He is considered one of the 

foremost authorities on the subject of Presidential succession and 

the Constitution. 

Dr. John Fortier—is that the correct pronunciation?—is an accomplished scholar at the American Enterprise Institute and serves 

as Executive Director for the Continuity of Government Commission. He has written and studied on these issues of governmental 

continuity as well as Presidential succession. 

And Mr. Miller Baker is a partner in the law firm of McDermott 

Will & Emery. He previously served as counsel to the Senate Judiciary Committee as well as at the Justice Department. He is also 

a former intelligence officer for the U.S. military and has been recently published on Presidential succession issues by the Federalist 

Society. 

Our final witness is Professor Howard Wasserman. Professor 

Wasserman teaches law at Florida International University College 

of Law and has studied and published on the subject of Presidential succession and the U.S. Constitution. 

We look forward to hearing from all of you, and if you would give 

us your testimony in that order, and after you have testified, we 

will have perhaps other Senators here that would like to make 

statements, and then we have got a series of very interesting questions we would like to propound to you. 

Professor? 

STATEMENT OF AKHIL AMAR, SOUTHMAYD PROFESSOR OF 

LAW AND POLITICAL SCIENCE, YALE LAW SCHOOL, NEW 

HAVEN, CONNECTICUT 

Mr. AMAR. Thank you, Mr. Chair. My name is Akhil Reed Amar. 

I am the Southmayd Professor of Law and Political Science at Yale 

and have been writing about the topic of Presidential succession for 

over a decade. In February 1994, I offered testimony on this topic 

to the Senate Judiciary Subcommittee on the Constitution, and I 

am grateful for the opportunity to appear here today. As my testiVerDate Aug 31 2005 14:03 Dec 23, 2008 Jkt 045948 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45948.TXT SJUD1 PsN: CMORC
7 

mony draws upon several articles that I have written on the subject, I would respectfully request that these articles be made part 

of the record. 

The current Presidential succession Act, 3 U.S.C. section 19, is 

in my view a disastrous statute, an accident waiting to happen. It 

should be repealed and replaced. I will summarize its main problems and then outline my proposed alternative. 

First, section 19 violates the Constitution’s Succession Clause, 

Article II, section 1, paragraph 6, which authorizes Congress to 

name an ‘‘officer’’ to act as President in the event that both President and Vice President are unavailable. House and Senate leaders 

are not ‘‘officers’’ within the meaning of the Succession Clause. 

Rather, the Framers clearly contemplated that a Cabinet officer 

would be named as Acting President. This is not merely my personal reading of Article II. It is also James Madison’s view, which 

he expressed forcefully while a Congressman in 1792. 

Second, the act’s bumping provision, section 19(d)(2), constitutes 

an independent violation of the succession clause, which says that 

the ‘‘officer’’ named by Congress shall ‘‘act as President...until the 

[Presidential or Vice Presidential] Disability be removed, or a 

President shall be elected.’’ section 19(d)(2) instead says, in effect, 

that the successor officer shall act as President until someone else 

wants the job. Bumping weakens the Presidency itself and increases instability and uncertainty at the very moment when the 

Nation is most in need of tranquility. And I think that the scenario 

that Senator Cornyn offered very vividly captured some of the 

problems with instability and how it weakens the Presidency in a 

variety of situations. 

Now, even if I were wrong about these constitutional claims, they 

are nevertheless substantial ones. The first point, to repeat, comes 

directly from James Madison, father of the Constitution, who 

helped draft the specific words of the Succession Clause. Over the 

last decade, many citizens and scholars from across the ideological 

spectrum have told me that they agree with Madison about the 

constitutional questions involved. If, God forbid, America were ever 

to lose both her President and Vice President, even temporarily, 

the succession law in place should provide unquestioned legitimacy 

to the ‘‘officer’’ who must then act as President—in part to keep it 

out of the courts and to reassure the country. And, again, I think 

the scenarios that Senator Cornyn offered were very vivid and, to 

me, quite powerful. With so large a constitutional cloud hanging 

over it, section 19 fails to provide this desired level of legitimacy. 

In addition to these constitutional objections, there are many policy problems with section 19. First, section 19’s requirement that 

an Acting President resign his previous post makes this law an 

awkward instrument in situations of temporary disability. And, 

Senator Lott, I think that is partly what you were talking about 

with having to leave your House job and the instabilities that that 

would create. The House needs to get new leadership and all of 

that. section 19’s rules also run counter to the approach of the 25th 

Amendment, Senator Lott, which you mentioned, which facilitates 

smooth handoffs of power back and forth in situations of short-term 

disability—scheduled surgery, for example. 

8 

Second, section 19 creates a variety of perverse incentives and 

conflicts of interest, warping the Congress’s proper role in impeachments and in confirmations of Vice Presidential nominees under 

the 25th Amendment. 

Third, section 19 can upend the results of a Presidential election. 

If Americans elect party A to the White House, why should we end 

up with party B? Here, too, section 19 is in serious tension with 

the better approach embodied in the 25th Amendment, which enables a President to pick his successor and thereby promotes executive party continuity. 

Fourth, section 19 provides no mechanism for addressing arguable Vice Presidential disabilities or for determining Presidential 

disability in the event the Vice President is dead or disabled. These 

are especially troubling omissions because of the indispensable role 

that the Vice President needs to play under the 25th Amendment. 

Fifth, section 19 fails to deal with certain windows of special vulnerability immediately before and after Presidential elections. 

In short, section 19 violates Article II and is out of sync with the 

basic spirit and structure of the 25th Amendment, which became 

part of our Constitution two decades after section 19 was enacted. 

The main argument against Cabinet succession is that Presidential powers should go to an elected leader, not an appointed underling. But the 25th Amendment offers an attractive alternative 

model of handpicked succession: from Richard Nixon to Gerald 

Ford to Nelson Rockefeller, for example, with a President naming 

the person who will fill in for him and complete his term if he is 

unable to do so himself. The 25th Amendment does not give a 

President carte blanche; it provides for a special confirmation process to vet the President’s nominee, and confirmation in that special 

process confers added legitimacy upon the nominee. And, Senator 

Lott, it was very interesting to hear that even as a House Member, 

you were involved in the confirmation process, which ordinarily 

does not happen, but the 25th Amendment creates that special 

level of participation and legitimacy. 

So if the 25th Amendment reflects the best approach to sequential double vacancy—when the top two positions, President and 

Vice President, become unavailable at slightly different times, first 

one, then the other—a closely analogous approach should be used 

in the event of simultaneous vacancy when they both become unavailable at the same instant. Congress could, if it wanted to, create a new Cabinet post—it could be called Assistant Vice President 

or Second Vice President or First Secretary; the name is not particularly important. But this new position would be one that would 

be nominated by the President and confirmed by the Senate in a 

high-visibility process. This officer’s sole responsibilities would be 

to receive regular briefings preparing him or her to serve at a moment’s notice, and to lie low until needed: in the line of succession 

but out of the line of fire, perhaps out of this city altogether in a 

location that would be very far removed from the President and 

Vice President in general. 

The democratic mandate of this Assistant Vice President or First 

Secretary might be further enhanced if Presidential candidates announced their prospective nominees for this third-in-line job well 

before the November election. In casting ballots for their preferred 

9 

Presidential candidate, American voters would also be endorsing 

that candidate’s announced succession team of Vice President and 

third in line. Cabinet officers should follow the Assistant Vice 

President in the longer line of succession, as is true in the current 

statute. 

This solution solves the constitutional problems I identified. The 

new Assistant Vice President would clearly be an ‘‘officer’’; bumping would be eliminated. The solution also solves the practical 

problems. No resignations would be required; power could flow 

smoothly back and forth in situations of temporary disability. Congressional conflicts of interest would be avoided. Party and policy 

continuity within the executive branch would be preserved. And 

the process by which the American electorate and then the Senate 

endorsed any individual Assistant Vice President would confer the 

desired democratic legitimacy on this officer, bolstering his or her 

mandate to lead in a crisis. 

The two additional issues I have raised today—Vice Presidential 

disability and windows of special vulnerability at election time— 

also have clean solutions, as explained in my 1994 testimony. 

Thank you. 

[The prepared statement of Mr. Amar appears as a submission 

for the record.] 

Chairman LOTT. Thank you. 

Mr. Fortier? 

STATEMENT OF JOHN C. FORTIER, EXECUTIVE DIRECTOR, 

CONTINUITY OF GOVERNMENT COMMISSION, AND RESEARCH ASSOCIATE, AMERICAN ENTERPRISE INSTITUTE, 

WASHINGTON, D.C. 

Mr. FORTIER. I would like to thank the Rules and Judiciary Committees for holding this hearing on the important subject of Presidential succession. 

Let me salute the Senate for already having begun this task. 

Senator Lott mentioned this morning S. 148, Senator DeWine’s bill, 

which passed through the Rules Committee and the full Senate. I 

support the substance of the bill, putting the Secretary of Homeland Security in the line of succession, but also applaud the thinking behind it. Typically, when a new Cabinet position, we just lump 

them at the end of the line of succession without thinking about 

their relative importance. In this case, we did think about it, and 

we moved the Cabinet Secretary up to a place below the big four 

Cabinet members, but thinking about his relative importance with 

national security matters. 

If you use this as a model to think through and not follow simply 

the status quo of the current Presidential succession Act, I think 

we will be moving in the right direction. 

In my written testimony, I provide a number of areas that need 

improvement, but let me highlight three this morning. 

First, everyone in the line of succession lives and works in the 

Washington, D.C., area. In the nightmare scenario of terrorists detonating a nuclear device, it is possible that everyone in the line of 

succession might be killed. Imagine the aftermath: a parade of generals, Governors, and Under Secretaries claiming to be in charge. 

10 

To fix this problem, I have a solution which is similar in some 

ways to the one that Professor Amar presented, but I suggest that 

we create four or five offices that would be lower down the line of 

succession that would be held by people outside of Washington. In 

particular, we can imagine that a President would nominate sitting 

Governors, if the State Constitution of that State did not forbid 

them to hold Federal office, which some States do and some States 

don’t; or former public figures at a high level—former Presidents, 

former Vice Presidents, Cabinet members, or Members of Congress. 

These offices could be, through a regular nomination and confirmation process, put in place. We would ask them to generally stay 

outside of Washington, receive regular security briefings, and the 

office could be structured with some additional duties, such as regional coordination of homeland security issues. My proposal is to 

put them in the middle of the Cabinet, somewhere below the top 

five officers. They would serve as an ultimate backstop if the worst 

were to happen. 

Second, consider the role of congressional leaders in the line of 

succession. I think it is fair to say that the dominant view of constitutional scholars is that it is unconstitutional to have Members 

of Congress in the line of succession, although, of course, practice 

has gone in the other direction for many years. 

I share this view that at least the Framers did not intend to put 

Members in the line of succession, but in my testimony, I try to 

walk through the various scenarios that Congress might be called 

on to succeed to the Presidency congressional leaders and identify 

which of them makes sense for us and which of them don’t. And 

if you come to the same conclusions that I do, you will find at least 

a way of reducing the role of Congress in the line of succession. 

For example, Congress could potentially—or a Member of Congress could come to the Presidency based on the death, the incapacity, the resignation, the removal, or the failure to qualify of the 

President. And to take the incapacity issue, for example, do we 

want a Speaker of the House taking over temporarily for a President? It could be a Speaker of the House of the other party. It 

would be a case where the Speaker would have to resign his or her 

seat in Congress and as Speaker. If you have a scenario of a President who is fading in and out of capacity, has a condition that 

comes back into health, then displaces the Speaker of the House, 

potentially another Speaker of the House, newly elected, would 

then have to take over. It makes little sense for an incapacitation 

scenario to involve Congress. And several of the other scenarios I 

also find problematic. 

The one case where I would recommend keeping Congress in the 

line—and I think this is consistent with the Constitution because 

it comes from a different provision in the 20th Amendment—is that 

of the failure to qualify of a President. In the case where an election controversy goes all the way up to January 20th and we have 

no President, or in the case of an attack that occurs shortly before 

the inauguration, there is no Cabinet from the incoming administration, and the only other option we would have would be to go 

back to the Cabinet of the prior administration. 

Third, think of individual scenarios, and in particular, the inauguration scenario, which I referred to. This is perhaps the most 

11 

vulnerable time for Government when all of the people at the top 

of the line of succession gather together for a ceremony, and yet 

none of the people in the line of succession, the Cabinet members 

for the new administration, have been nominated. Consider for a 

moment what would happen if terrorists had set off a bomb during 

the inaugural ceremony. The President-elect, the Vice Presidentelect, Speaker, and pro tem are likely there and would have perished along with many Members of Congress and the Supreme 

Court. Who would succeed to the Presidency? Well, the Cabinet, 

but the Cabinet of the prior administration. Imagine such an attack had occurred in 2001. A country expecting Republican George 

W. Bush to take office would have found themselves with a Democratic President Larry Summers. As Secretary of the Treasury, 

Summers was the highest ranking Clinton Cabinet member eligible 

to serve as President. 

But the scenario is actually even more complicated than that, as 

many Cabinet Secretaries typically resign before the inauguration, 

leaving Acting Secretaries in their place. And an Acting Secretary 

is in the line of succession as long as that person has been confirmed by the Senate for some position. So if it is a political appointee, a number 2 or a number 3 person at the State Department, that person will take over as Acting Secretary of State and 

be in the line as well. 

I have a piece coming out entitled ‘‘President Michael Armacost?’’ 

who, if you know, the president of Brookings could have been the 

President of the United States in the scenario of the 1989 inaugural. 

One of the difficulties here is that there is a gap between when 

the President can take office and can nominate his Cabinet and the 

Senate can come in to confirm them. At times, in cases of quick action, there is a gap of only 3 or 4 hours. But it has been up to 5 

days in the case of 1989. And there are several changes in custom 

and law that would protect us from this scenario. 

First would be to establish a custom of the outgoing President to 

nominate the new Cabinet coming in on the morning of January 

20th. The Senate could come in, confirm the Cabinet before noon 

of January 20th, and you would have people in place in case the 

worst happened, and those people would not have to attend the inaugural scenario. 

Second, the question of whether an Acting Secretary should be 

in the line of succession. I recommend that we take out that provision and just rely on those who were confirmed for the Cabinet post 

themselves. 

And, finally, there are significant problems with the continuity of 

Congress itself in the case of an inaugural attack. Congress may 

have its own difficulties reconstituting itself and to the extent that 

we can address them, we come up with a more reasonable congressional leader coming out of a newly re-established Congress that 

might eventually take over. 

[The prepared statement of Mr. Fortier appears as a submission 

for the record.] 

Chairman LOTT. Thank you. 

Mr. Baker? 

12 

STATEMENT OF M. MILLER BAKER, ESQ., MCDERMOTT WILL & 

EMERY, WASHINGTON, D.C. 

Mr. BAKER. Mr. Chairmen, Ranking Members, and Members of 

the Committees, thank you for the invitation to be here today to 

discuss issues pertaining to Presidential succession. 

This issue, which has surfaced as a political and constitutional 

issue every several decades in American history, as Senator Lott 

noted, is of particular concern in the aftermath of September the 

11th. It is very clear, for all the horror of that terrible day, it easily 

could have been even worse. It is apparent that had our enemies 

planned and executed a strike like September 11th for the principal purpose of decapitating the Government of the United 

States—and, in particular, the Presidency—that they very well 

might have succeeded. 

Chairman LOTT. Mr. Baker, pull that microphone just a little bit 

closer, if you would, please. 

Mr. BAKER. Certainly. 

Chairman LOTT. Thank you. 

Mr. BAKER. Any attempt by America’s enemies to decapitate the 

U.S. Government unfortunately would be assisted, rather than 

thwarted, by the Presidential Succession Act of 1947. In my view, 

the 1947 Act is the single most poorly designed statute in the entire United States Code. I say this because the 1947 Act could deprive the Nation at the worst possible moment of what Alexander 

Hamilton in the Federalist No. 70 called ‘‘energy in the executive,’’ 

with truly catastrophic consequences. 

My written statement describes in detail my criticisms of the 

1947 Act. I will briefly summarize my views here. 

First, the 1947 Act gives the House Speaker and the President 

pro tem a special preference in the line of succession that enables 

them to bump or to displace a Cabinet officer serving as Acting 

President, even if the House Speaker doing the bumping was chosen only by a handful of Representatives in the aftermath of an attack that left most Members of the House dead. 

Even if the Speaker and the President pro tem are to remain in 

the line of succession—and I do not believe that they should—this 

special privilege of bumping by a new Speaker or a President pro 

tem by one that chose not to assume the Acting Presidency when 

it became available should be eliminated from the law. 

Second, the 1947 Act requires that a statutory successor resign 

his or her post as a condition of assuming the Acting Presidency 

even if the period of serving in this capacity is only for a few hours. 

This requirement could easily induce hesitation, especially if the 

fate of the President and the Vice President was unknown. This inducement to hesitation should be removed from the law. The law 

should induce action, not inaction. We need energy in the executive. 

Third, the 1947 Act does not allow a more senior Cabinet successor that was temporarily unable to act to assume the Acting 

Presidency from a more junior Cabinet officer that assumed the 

Acting Presidency. This induces hesitation because a lower-ranking 

Cabinet officer may be fearful of being charged with usurpation. 

For example, on September the 11th, when Colin Powell was out 

of the country, if the President, Vice President, Speaker, and PresiVerDate Aug 31 2005 14:03 Dec 23, 2008 Jkt 045948 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45948.TXT SJUD1 PsN: CMORC
13 

dent pro tem had been killed or were missing in attacks on the 

White House and the Capitol building, then-Treasury Secretary 

Paul O’Neill would have had to have made an immediate decision 

about whether Colin Powell was unable to discharge Presidential 

duties because of his absence from the country. The military may 

have been on the phone requesting authority to shoot down airliners. In the meantime, the Treasury Secretary is trying to decide 

whether or not he has authority to become Acting President. In the 

meantime, the decision has to be made. 

Under section 19, had O’Neill assumed Presidential duties, Powell would not have been able to displace O’Neill upon his return to 

Washington, which might have resulted in claims that O’Neill had 

wrongfully usurped the Presidency and in litigation over whether 

Powell, in fact, had been unable to discharge Presidential duties at 

the time of O’Neill’s assumption of the Acting Presidency. The very 

fact that O’Neill might be exposed to charges of usurpation might 

cause him to hesitate before acting. A Cabinet officer in O’Neill’s 

position on September the 11th would probably remember the ridicule that Alexander Haig suffered in 1981 from declaring that he 

was in charge pending the Vice President’s return to Washington 

and doubtless would like to avoid a similar fate. 

Fourth, I recommend that the Congress remove the Speaker, the 

President pro tem, and all the Cabinet officers from the line of succession save the Secretary of State, the Secretary of the Treasury, 

the Secretary of Defense, the Attorney General, and the Secretary 

of Homeland Security. As has been noted before, placing the congressional leaders in the line of succession allows for the possibility 

of undoing the results of the last Presidential election. In addition, 

does anyone seriously believe, with all due respect to the incumbents of these offices, that the Secretary of Agriculture or the Secretary of Veterans Affairs should be catapulted into the Presidency, 

especially in the heat of a supreme crisis that could compare to December 7, 1941, and November 22, 1963, rolled into one? 

Fifth, Congress should create special successor officers comprised 

of State Governors and others that the President would appoint by 

and with the advice and consent of the Senate or, as Professor 

Amar has suggested, possibly with the House involved as well. 

Sixth, I believe Congress should submit a constitutional amendment to the States for ratification to cure the various deficiencies 

in the Presidential succession mechanism that cannot be corrected 

by statute and to validate other provisions in the succession law 

that may be unconstitutional. 

Since it is clear that a constitutional amendment is necessary to 

ensure the continuity of Congress, the same amendment should 

also address issues of Presidential succession. By way of example 

of an issue that probably needs to be addressed by this amendment, it is unclear under existing law whether when the Acting 

President should nominate a Vice President under the 25th 

Amendment, when the new Vice President is confirmed by Congress, does the new Vice President then bump the Acting President 

who made the nomination of the Vice President under the 25th 

Amendment? That needs to be clarified by existing law, and that 

can probably only be clarified by a constitutional amendment. 

Thank you very much. 

14 

[The prepared statement of Mr. Baker appears as a submission 

for the record.] 

Chairman LOTT. Thank you. 

Mr. Wasserman? 

STATEMENT OF HOWARD M. WASSERMAN, ASSISTANT PROFESSOR OF LAW, FLORIDA INTERNATIONAL UNIVERSITY 

COLLEGE OF LAW, MIAMI, FLORIDA 

Mr. WASSERMAN. Thank you. Mr. Chairman, Ranking Members, 

members of the Committee, my name is Howard Wasserman. I am 

Assistant Professor of Law at Florida International University College of Law. 

My testimony this morning draws on a couple of articles that I 

have written on this subject. I ask unanimous consent that they be 

included in the record. 

Chairman LOTT. Without objection, they will be included in the 

record at this point. 

Mr. WASSERMAN. The consensus from the members of the Committee and the panelists that we have heard so far this morning 

seems to agree on two points: section 19 has serious, multiple flaws 

and has been flawed from the beginning, and that the events of 

September 11, 2001, drew those flaws into very specific relief. And 

I want to focus on a couple of areas from my submitted testimony 

as to those flaws. 

First, I agree that Cabinet officers are and should be the primary 

and preferred statutory successors as a matter of partisan continuity, as a matter of democratic legitimacy, and as a matter of 

separation of powers. I also agree that we need to extend the line 

of succession by expanding the Cabinet, particularly by creating a 

single position—Assistant Vice President, First Secretary, Successor Secretary—whose sole job would be to sit as first in line of 

succession and to remain outside of Washington. 

I believe, however, that the Speaker of the House and the President pro tempore of the Senate can and should remain in the line 

of succession as eligible successors, but at the end of the line, for 

this reason: September 11th raises the possibility of the worst-case 

scenario of the death or disability of the President, Vice President, 

and everybody we can imagine putting in the Cabinet, including a 

First Secretary or a panel of First Secretaries. 

Now, our discussion of Presidential succession this morning is occurring in the context of a broader conversation about continuity 

in the Federal Government as a whole, including what steps can 

be taken to ensure that there always is a functioning Congress. If 

there is a functioning Congress, whether because Congress survived the terrorist attack intact or because Congress has somehow 

been reconstituted, under Article I the first and necessary step in 

each House will be to pick a Speaker and a President pro tem, respectively. Those two offices always will be filled, and if they always are filled and if those officers remain in the line of succession, 

then we have someplace for the executive power to devolve in that 

worst-case scenario. And I would suggest, in fact, that keeping 

them in the line is necessary because in their absence in the worstcase scenario, there is no one under the Constitution or statute 

15 

who would be able to assume the Executive power short of holding 

a new election. 

Second, the other major change that needs to be made to section 

19, in addition to reordering the line of succession, is to provide for 

special expedited elections whenever section 19 has been triggered 

by a permanent double vacancy. Now, the original 1792 statute 

provided for expedited elections. That provision has not been included in either of the two subsequent enactments. 

Now, I agree that what we could call indirect or what Professor 

Amar has called ‘‘apostolic democratic legitimacy’’ attaches to an 

Acting President who had been a member of the Cabinet, who had 

been the hand-picked policy surrogate of the populist President. 

But I would suggest that that indirect democratic legitimate legitimacy only lasts for a short period of time. It lasts long enough to 

restore order, to calm the public, and to begin the recovery process. 

It does not for 3 years and 4 months, which is how long an Acting 

President, whether it had been Speaker Hastert, Secretary Powell, 

Secretary O’Neill, would have held the executive power had the 

tragedy of September 11th included the deaths of the President 

and Vice President. 

This special election reasonably can occur within approximately 

6 months. That is enough time to allow for national mourning, to 

allow the restoration of some public stability, and to allow the 

States to organize 51 simultaneous popular elections. And the election would bestow direct popular legitimacy on the occupant of the 

White House via deliberative selection by the national electoral 

constituency. Finally, and most importantly, that special election 

enables the Nation truly to move forward in the longer term behind 

a nationally popularly chosen President and Vice President. 

I thank the Committee for the opportunity to address this joint 

hearing, and I wish this body every success in drawing the most 

workable and most structurally consistent Presidential succession 

process. 

Thank you. 

[The prepared statement of Mr. Wasserman appears as a submission for the record.] 

Chairman LOTT. Thank you, Professor Wasserman. 

Before we begin our questions, Senator Feingold has returned. If 

you would like to make a statement at this time, we would be glad 

to hear from you. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you very much, Mr. Chairman, and 

Chairman Cornyn as well, for holding this important hearing. 

The topic of Presidential succession has occupied the Congress 

periodically since our Nation’s founding. Usually a revival in interest in the topic occurs because of some event that leads us to dust 

off the statute and the Constitution and contemplate, ‘‘What if?’’ 

That happened when Andrew Johnson succeeded to the Presidency 

upon the assassination of Abraham Lincoln and then was impeached by the House of Representatives. 

It happened again when Harry Truman became President after 

the death of Franklin Delano Roosevelt. He viewed the statutory 

16 

solution reached in 1886 as unsatisfactory and convinced Congress 

to pass a new succession statute. 

The assassination of President Kennedy led to the adoption of 

the 25th Amendment as the country contemplated how a Vice 

President who becomes President should be replaced and what 

should happen if the President become disabled. 

Now, as the witnesses have already indicated, of course, September 11th has revived interest in Presidential succession. The 

possibility of a terrorist attack that takes the life of both the President and the Vice President—[microphone out]—contemplate. But 

we have a duty to at least examine the question of whether the 

Constitution and the U.S. Code are adequate to preserve the Union 

and provide the country with the best possible leadership in such 

a crisis. 

The issues raised by this topic are certainly interesting for anyone interested in our system of Government and our Constitution, 

and I have already enjoyed hearing from our witnesses about them. 

Should leaders of the legislative branch be in the line of succession? If so, how? And which leaders? Should the succession be different in the case of death as opposed to disability of the President, 

Vice President, and others in the line of succession? And if so, how 

should we provide for a person higher up the chain to move into 

the office when they are able to do so? 

These are all questions worth exploring. I do not believe, however, and I know the Chairmen do not believe that we should obsess about them. Our most dedicated efforts should be devoted to 

preventing the next terrorist attack and making sure our first responders are prepared to deal with it if it happen. This is not to 

say that this hearing should not have been held, but only to caution that the time and resources of this Congress and this Government are finite, and we must not be distracted from the task at 

hand by too much attention to what will most likely be only theoretical questions. But I do think this is extremely interesting for 

any of us that have spent time in our lives looking at Government, 

and I thank again Chairman Lott and Chairman Cornyn for the 

opportunity to speak, and I look forward to the further testimony 

of our witnesses. 

Thank you, Mr. Chairman. 

Chairman LOTT. Thank you, Senator Feingold, for your interest 

in this issue and other related issues and your desire to see that 

we consider reforms in a variety of areas to try to make the Congress and the Government more efficient, and we appreciate your 

leadership. 

Let me go back then and get into some questions. Since you have 

testified first, we will come back to you, Professor Amar. Why did 

Truman more or less insist that leaders of Congress be included in 

the line of succession? If you look back at the history of that, that 

had been debated. Madison, as you all referred to, did not think 

leaders of Congress should be included, and then I guess there was 

another action taken in 1886 and then finally in 1946 or 1947 

when the last legislation was passed. But the history seems to indicate that Truman really was advocating that Members of Congress 

be included. Was this just a way of currying favor? Or was there 

some basis for it? Because it does not make sense to me. 

17 

Mr. AMAR. President Truman was a great man. He was not burdened with an extensive legal education. He actually had gone to 

law school but—and he did not present himself as a constitutional 

expert. He came from this body, and that was his biography, and 

I think he had real skepticism about the idea of someone unelected 

assuming the position. He had a certain phrase about people in the 

State Department, actually, that appears in McCullough’s biography: ‘‘the striped pants boys.’’ So he had a certain skepticism 

about people who had never run for anything in their life. 

His proposal actually was not quite the same one that Congress 

adopted in 1947. For example, he wanted there to be a special election in the event of a successor Presidency that the bill that Congress passed did not include that provision, and he signed it anyway. So the stakes were lower, of course, if it is just a brief period. 

I think that the 25th Amendment addresses some—that model 

addresses some of President Truman’s concerns by creating a sort 

of special legitimacy through a special confirmation process. And if 

we created a new Cabinet position at the top whose only purpose 

was really to be next in line, it could even be someone who had 

been President in the past or a former office holder the country had 

a great degree of confidence in. Then if candidates announced their 

prospective nominees to the American people before the November 

election, there would be a kind of national endorsement of that 

next-in-line position, which I think would satisfy Truman himself. 

Truman himself, of course, no one quite directly voted for him as 

Vice President, but when they voted for President Roosevelt, they 

voted for him as well. And so, too, I think an idea might be, well, 

if you vote for the candidate, you are voting for his Vice President, 

and also the third-in- line person that he has designated, and that 

would create a little bit more electoral responsibility. 

A final point is he is, of course, thinking about all of this before 

there has been a President Ford, before there has been a Vice 

President Rockefeller under the 25th Amendment process, which is 

sort of a different one than the one he is imagining. 

Chairman LOTT. Frankly, I am surprised that at least a couple 

of you, maybe three of you, have advocated an Assistant Vice President. I know some people who have in the past questioned the 

value of the current Vice Presidency, although I think over the 

years that position has grown in responsibility and visibility, too. 

But I don’t know. An Assistant Vice President just seems like we 

are adding even more—I do not know—encumbrances in a way. I 

mean, why would you want to go off on a wing that way when you 

have got an order of succession that you could go with? So I would 

be interested if any of you want to defend that a little bit. 

And the second thing is, though—because we are beginning to 

run out of time, and I will yield to the others for questions—can 

we do what we need to do in this area just with a statute? Or do 

you think we need a constitutional amendment? 

Mr. AMAR. I think for congressional continuity, there may be constitutional amendment needs, but for this I think a statute could 

be pretty cleanly adopted. You do not have to go for the First Secretary idea. I think the biggest thing that all of us have suggested 

is to seriously rethink the legislative leaders at the top of the sucVerDate Aug 31 2005 14:03 Dec 23, 2008 Jkt 045948 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\45948.TXT SJUD1 PsN: CMORC
18 

cession list if that does not work in a variety of ways, constitutional 

and policy. 

The reason for the new office, there are about three or four 

thoughts: It enables you to have someone who is out of Washington, D.C., because he does not have a regular day job, which ordinarily you might think, well, why create another make-work job? 

But if you are concerned about these absolute worst-case, what-if 

scenarios, the fact that he or she is out of the line of fire is an affirmative advantage. 

Chairman LOTT. I wonder if it isn’t a simpler solution just to say 

that one of Cabinet Secretaries—frankly, maybe a lot of the Cabinet Secretaries—could be out of this city. I never have quite understood why the Secretary of Agriculture shouldn’t be in St. Louis or 

Kansas City or whoever wants it. 

Mr. AMAR. You could. A second thought is that the person who 

might be even the best Secretary of State might not necessarily be 

the best person in this very unusual double-death, double-disability 

situation. Maybe you want to just pick—I am a baseball purist. I 

do not much like the DH. But you might want to, you know, pick 

someone—maybe they are not a great fielder, but they are good at 

one very discrete function. They are great hitters. So one function, 

someone who in an absolute crisis would be the person that the 

American people have the most sense of comfort with, maybe even, 

again, someone who has held the position in the past. 

Chairman LOTT. OK. Mr. Baker, I think I see you squirming like 

you would like to get into this discussion. Do you want to respond 

briefly to any of those questions I propounded? Then I will yield to 

Senator Cornyn. 

Mr. BAKER. Thank you, Senator. I would say that a statute could 

solve most of these problems, but not all of them. And the one example I gave in my testimony was this uncertainty under the 15th 

Amendment. We have an Acting President, let’s say a Cabinet officer or a Speaker who is serving as Acting President. One of their 

first duties under the 25th Amendment is to nominate a Vice President. 

Now, under the 25th Amendment, a Vice President becomes 

President if there is no President. And when we have an Acting 

President, we do not have a President. We have an Acting President. That is a distinction with a difference. There are different 

views on this, but I think it is a close call. And certainly it is rife 

with uncertainty. So I think there are some issues that need to be 

addressed by an amendment. 

In terms of having First Assistant Vice Presidents outside of 

Washington, one way to deal with this might be without establishing a formal office—but it would probably take an amendment 

to do this—is to allow the President to nominate, have the Senate 

confirm former prominent office holders that we would all have 

confidence in their ability to perform this function. Former President Bush, for example, could serve in the line of succession. One 

might imagine a Democratic President nominating former Vice 

President Gore or former Vice President Mondale. They would not 

have to receive any pay per se. They would not have to have an 

office. But in order to do that constitutionally, I think that it would 

19 

be probably necessary, if you are not going to create an office, to 

have a constitutional amendment to validate that process. 

But there are ways of doing it, of creating successors outside of 

the Cabinet who are not going to hold an office per se. Of course, 

holding an office per se is, I think, actually a good idea, but you 

don’t necessarily have to do that. 

In sum, most of the problems can be addressed by amendments 

to the statute, but I think there are a few issues that have to be 

addressed by a constitutional amendment. 

Chairman LOTT. Senator Cornyn? 

Senator CORNYN. Thank you very much, Chairman Lott. 

Gentlemen, we hear whenever constitutional amendments are 

proposed or even discussed in the Constitution Subcommittee, for 

example, or on the Judiciary Committee, about the reluctance that 

most people feel when it comes to amending the Constitution, although we have done it 27 times. And hopefully when it is necessary to do so, we will not show any hesitancy at discharging the 

duty that we have assumed as a Member of Congress when it 

comes to recommending those amendments that are necessary. 

But besides the constitutional issues that have been raised about 

Members of Congress serving in the line of succession, I wonder if 

you might have some comments, and I will start with Dr. Fortier— 

am I pronouncing that correctly?—first. 

But, for example, I am aware of the problems that occurred during the impeachment trial of President Andrew Johnson when the 

President pro tem, anticipating his Senate colleagues would vote to 

remove Johnson and install him in the White House, actually announced Cabinet appointments that he would make were he made 

President, thus, in essence, building a constituency, I guess, for 

that choice. 

I am also aware of problems that occurred during the Vice Presidential confirmation proceedings of Gerald Ford when some tried 

to delay confirmation so that House Speaker Carl Albert would become President in the event Congress forced President Nixon to resign from office. 

So do you see, in addition to constitutional issues, prudential 

concerns that would call for a constitutional amendment? Or do 

you think a statute would solve this? Please address that. 

Mr. FORTIER. I think most of the problems can be dealt with by 

statute. I agree with Professor Amar on the continuity of Congress 

issue, which we were pleased that you held a hearing on last week, 

that involves more of a constitutional solution. Most can be dealt 

with by statute. 

If we were redrafting the 25th Amendment, if we were at the 

stage where we had not put that in place, we might do it differently. The initial draft of the 25th Amendment which came before the Senate Judiciary Committee, while President Johnson was 

President, without a Vice President, took Congress out of the line 

of succession and made it clear that the Cabinet would step in for 

an incapacitated President in the same way that the Vice President 

is empowered to do so in the current Act. That was ultimately 

taken out because of some concerns of offending the Speaker at the 

time, John McCormack, and once it was enacted and ratified, it 

was done without that. 

20 

So at that stage in time, I think we could clarify that and would 

go with the original version. But there are enough things that we 

can do in law to even specify in a little bit more detail what the 

procedure would be for a Cabinet member taking over in an incapacitation situation. 

You also mentioned the case of impeachment. I think it is worthwhile looking at each scenario that Congress is in the line of succession, and the impeachment and removal scenario is one where 

Congress has a real conflict of interest because it not only has to 

choose to remove the President, but it would put one of its own in 

place, and theoretically a party switch. You mentioned the two 

cases where we came very close to that. 

Senator CORNYN. One other question I had was about other reforms over and above those that you have discussed in your prepared statements, each one of you here. I wonder if, as long as we 

are looking at trying to address these issues, whether we should 

look at these as well. 

For example, I understand that the 25th Amendment addresses 

uncertainties in Presidential disability by allowing the Vice President and other officers to certify that the President is disabled. But 

the 25th Amendment does not address uncertainties in Vice Presidential disability. What happens if both the President and the Vice 

President are disabled? Do we need a statute to provide some objective standard, if that is possible, for determining a Vice Presidential disability? Or can we assume that if both the Vice President and the President are not well enough to assert their claims 

to the Presidency, the office will just automatically devolve on 

someone else according to the statute? 

I wonder if we could perhaps—Professor Wasserman, do you 

have any thoughts in that regard? 

Mr. WASSERMAN. My initial thought is that we at some level 

need some objective standards as to both the President controlled 

by—the 25th Amendment does not establish the standards for 

President—for determining the Presidential—when the President is 

disabled. But as to both, if both offices—or if there is a disability 

in both offices, then by the terms of section 19, it would just devolve. It would just devolved down. Again, the reason for the import of moving Cabinet officers up to the top to keep all that movement, because the disability could be temporary, to keep any movement within the executive branch and not bringing Members of 

Congress into the mix. 

Senator CORNYN. Mr. Chairman, I have a lot of other areas of interest, as I know all of us do, and I know we will be able to submit 

any questions we have in writing as well as follow up. But at this 

time I would yield. 

Thank you very much. 

Chairman LOTT. Thank you, Senator Cornyn. 

I believe—is it ‘‘For-teer’’ or ‘‘For-ti-ay’’? 

Mr. FORTIER. Well, you have raised a family dispute, but I say 

‘‘For-ti-ay.’’ 

[Laughter.] 

Chairman LOTT. If it is in Louisiana and the Mississippi Gulf 

Coast, it is ‘‘For-ti-ay.’’ If it is here, I thought it was ‘‘For-teer.’’ 

21 

Mr. FORTIER. Well, for some reason, my Northeast family has 

picked up your Mississippi tradition of ‘‘For-ti-ay.’’ 

Chairman LOTT. All right. Well— 

Mr. AMAR. It is ‘‘For-ti-air’’ in Connecticut. 

[Laughter.] 

Chairman LOTT. You say you think it is unconstitutional to have 

congressional leaders in the line of succession, I believe, in your 

testimony. Why? I believe that point was made by Senator Cornyn, 

but I want to get a clarification on that. And then, Senator Feingold, if you want to pick up with some questions after that? 

Mr. FORTIER. I think there is a not universal but dominant position among constitutional scholars that it is for two reasons. 

One, the word ‘‘officer’’ that appears in Article II, Members of 

Congress are not officers of the United States, and if you look at 

the Framers, they intended there to be officers of the United States 

in the line. 

Second, the larger structural argument about separation of powers, that the Framers probably did not intend that. 

My recommendation actually is to think through the policy consequences of each of the scenarios rather than simply rely on that. 

And I have one exception to that, and that, I mentioned earlier, is 

the case where a President fails to qualify. You have, as I say, an 

election controversy which is not resolved before January 20th. In 

1876, we went up to just a couple of days before the March inauguration without a President. Or you have some sort of catastrophic attack where both the President and Vice President are 

killed just before the inauguration. 

That scenario is guided by the 20th Amendment, and that language is different. It does not require an officer. It just refers to 

Congress being able to put the person that they choose in the line. 

So that narrow case, I think, is not unconstitutional, but I would 

recommend you look at the policy consequences of each of the various scenarios that Congress would come into the line. 

Chairman LOTT. Senator Dodd has joined us. Senator Dodd, if 

you would like to make a statement at this time and then pick up 

on the questioning, we would be glad to hear from you. 

STATEMENT OF HON. CHRISTOPHER J. DODD, A U.S. SENATOR 

FROM THE STATE OF CONNECTICUT 

Senator DODD. Well, thank you very much, Mr. Chairmen, both 

of our Chairs, and I apologize for arriving a few minutes late here 

this morning, but let me thank our witnesses as well for their 

statements and their views on this important subject. And I thank 

both of our Chairs here and commend you both for calling this joint 

hearing. This is not a common experience, but I think it is a worthwhile one, when we are addressing an issue of this significance and 

importance. And, certainly, the events of 9/11 were a not so subtle 

reminder of the potential scenarios that could call into question, obviously, the procedures for establishing Presidential succession. 

And so I think this is a very timely and important subject matter. 

This is exactly the environment under which we ought to be considering those questions before a national catastrophe occurs and we 

are forced to act in haste or in response to a constitutional crisis. 

22 

As I know you have all heard, and those who have followed this 

subject matter know, Article II, section 1, obviously, of the Constitution and subsequent amendments establishes the foundation 

for Presidential succession, makes clear that the Framers’ preference that the Vice President should succeed to a vacancy in the 

Presidency. In their wisdom, the Framers left to Congress the question of how to settle a double vacancy, as occurs if the Presidency 

and the Vice Presidency are both left vacant. The Congress did not 

hesitate to fill this void and passed the first Presidential Succession Act in 1792, as you all know. 

It is noteworthy that in the 211-year history since that Act was 

adopted, Congress has only twice substantively or substantially revised it, which is rather unique considering how Congress usually 

likes to act in these matters, in both cases in response to circumstances related to the death of a sitting President. The history 

of the Succession Act and its progeny is a reflection, I think, of the 

200-plus-year debate on the subject and the dilemma Congress 

faces when it considers a change only in response to a crisis. This 

history is also revealing in its consideration of the same issues that 

our witnesses have 

raised here today. And if we are to avoid the mistakes of the 

past, then we only need to look at our own history. 

The 1792 Act provided that in the case of a double vacancy, the 

order of succession would fall to the President pro tempore of the 

Senate and then the Speaker of the House. But the term of either 

of those legislative officers was to be temporary only since the Act 

provided for a special election to fill the Presidential vacancy, unless the vacancy occurred in the last full year of the term. 

The placement of the legislative officers in the line of succession 

was not universally supported, as historians will note, and its critics included such constitutional authorities as James Madison. Representative Jonathan Sturgis of Connecticut observed at the time 

that if the Speaker were in the line of succession, there would be— 

and I am quoting him—‘‘cabling and electioneering’’ in the choice 

of Speaker. However, the Act remained substantially unchanged for 

nearly a hundred years. 

The Succession Act of 1886 followed the assassination of President James Garfield in 1881 and his incapacitation for a period of 

almost 80 days, and the untimely death of Vice President Thomas 

Andrews Hendricks in 1885, less than 9 months after his inauguration. Ironically, in both circumstances, both the office of the President pro tempore, then third in line to the Presidency, and the office of the Speaker, then fourth in line, were vacant at the time. 

Similarly, in both cases, there was a potential that least the position of the President pro tempore of the Senate would be filled by 

a member of the opposing party, thereby potentially leading to a 

switch in party should a double vacancy arise. 

To ensure the line of succession reduced the risk that such succession would result in a change in party in the White House, Congress passed the Succession Act of 1886, which eliminated the 

President pro tempore and the Speaker from the line of succession 

and provided for succession through Cabinet officers. The 1886 Act 

also eliminated the requirement for a special election that had governed succession for more than 60 years. 

23 

It was yet another death of a sitting President, that of Franklin 

Delano Roosevelt in April 1945, less than 3 months into his fourth 

term, and the ascendancy of the Presidency of Harry Truman that 

precipitated the latest revisions in Presidential succession, the Succession Act of 1947. President Truman found himself ill-prepared 

for the vacancy he filled, noting in his memoirs that, ‘‘Under the 

present system, a Vice President cannot equip himself to become 

President merely by virtue of being second in rank. The voters 

should select him as a spare Chief Executive.’’ 

With the ensuing vacancy in the Vice Presidency, Truman was 

called upon to nominate his successor, a task he did not relish. In 

his special message to Congress on June 19, 1945, President Truman declared that he did not believe that in a democracy this 

power should rest with the Chief Executive. He recommended that 

Congress restore an elected officer to the line of succession, in this 

case the Speaker, whom Truman argued had a more recent mandate, having been elected every 2 years, as opposed to 6 in the case 

of the President pro tempore of the Senate. Truman also recommended that the requirement for a special election be restored. 

In response, Congress enacted the Succession Act, which provides 

for the Presidential succession in the case of a double vacancy, but 

does not require that a special election be held. 

Many issues that faced the 2nd Congress in 1792 and the 49th 

Congress in 1886 and the 80th Congress in 1947 are before us 

again here today. But today, while it is both fortunate and opportune that Congress is not faced with an immediate crisis, we are 

faced with one of even greater magnitude than the one imagined 

by previous Congresses: the potential elimination of the entire line 

of succession by one terrorist act. 

It is prudent that we act now to remove any constitutional questions or deficiencies in the Presidential succession procedures. The 

principles that must guide our deliberations, in my view, are the 

need to establish certainty, clarity, and the constitutionality of succession. The legitimacy of our democracy hangs obviously in the 

balance of what we do, and nowhere is the need for a nonpartisan/ 

bipartisan approach more imperative than here. 

So, again, I look forward to the testimony that you have already 

given, and thank you again for being here. 

Let me ask all of you to sort of comment on the Truman commentary that he made in his speech to Congress in 1945. Did 

Harry Truman have it right in your views? Or did the Congress 

have it right based on the actions that the Congress took subsequent to his recommendations? Begin where you would like to 

begin. Who would like to start? 

Mr. AMAR. Well, Chairman Lott asked about President Truman, 

and I did endorse, in response to Chairman Lott’s question, the 

idea, which some other witnesses have, a special election might be 

a very good idea, and Truman proposed it, and Congress did not 

adopt that. And Truman might have been right on that. 

Let me mention one other decision that Congress made, a subsequent Congress. The Congress that proposed the 25th Amendment 

after the assassination of President Kennedy, in effect, repudiated 

the basic premise under which Truman operated. It basically said 

that a President, in effect, should pick his successor as long as that 

24 

successor is validated by a special kind of democratic confirmation 

process. That is what the 25th Amendment does. It provides for an 

unelected President, someone who was not even on the Presidential 

ticket. It provides for President Gerald Ford. It provides for Vice 

President, could be President, Nelson Rockefeller. So that is a determination that Congress made after 1945, after 1947, that I 

think really undercuts in some ways Truman’s vision. And if we 

wanted to rethink it now, we need to think about the 25th America, and as John has mentioned, the 20th Amendment as well, in 

terms of coming up with a statute that fits our modern constitutional sensibilities. 

Let me mention one other amendment, which is the lame-duck 

amendment, the 22nd Amendment, which enables Congress to 

meet before the Presidential inauguration and creates the possibility of the outgoing President, in effect, nominating the incoming 

President’s Cabinet and having all of that confirmed before Inauguration Day as a matter of transition courtesy, which would solve 

another special window of vulnerability that John has mentioned 

that I have previously testified on in 1994. 

Senator DODD. John? 

Mr. FORTIER. I, too, share some concerns with the larger tack 

that President Truman took about putting Congress in the line of 

succession. His concern was that we should have an elected person 

in the line. My concerns are partly constitutional, but mostly I 

think that in many cases it is bad policy to have congressional 

leaders in the line. 

Senator DODD. The Speaker does not have to be elected either. 

Mr. FORTIER. The Speaker does not have to be elected. That is 

true, although we have never had that scenario. But there are difficult separation-of-powers questions which force the Speaker or 

the pro tem or whoever takes office to more or less resign their office, even in a temporary situation. That is just one example of why 

having Congress in the line does not lead to the sort of stability 

that we would hope for in a case—it could be a case of a horrific 

attack where there are numbers of Members, people in the line of 

succession, dead or incapacitated, and forcing multiple Presidents 

or the Speaker to take over for a short period of time, only to then 

be displaced, and potentially another Speaker then later to take 

the Presidency would lead to the sort of confusion that we do not 

want to see after an attack. 

Chairman LOTT. Senator Dodd, could I ask a question there? 

Senator DODD. Sure. 

Chairman LOTT. I wondered why they switched from the President pro tem being third to fourth. Was it just purely simply the 

argument that President Truman made that he wanted the one 

most recently who had faced election? Was that the only justification for it? Was there more to it than that? 

Mr. FORTIER. The original Act had the pro tem, as you mentioned, and that was in the 2nd Congress. And the relative importance of the two offices, I think, was not as established. In fact, the 

tradition that we now have of electing the longest-serving member 

of the majority party the pro tem was not in place then. Truman 

made the point that the Speaker of the House was mostly truly 

representative of the American people in that he had been or she 

25 

had been elected to a district and then elected by a majority of the 

body. 

Chairman LOTT. And the President pro tem position evolved into 

what it now is, which is that he is or she is the longest-serving 

Member of the Senate of the majority party. Earlier it had been 

based on something other than just longevity, right? 

Mr. AMAR. And the speaker ship also suggests an inattention, 

putting that first in line, to some of the practical considerations 

that my friend John has really highlighted. If we look at American 

history, we are struck by the fact that for much of it, there is no 

Speaker of the House because the House is not a continuing body 

the way this body is. And so in 1857 and then again in 1859, there 

is not a Speaker for 11 months out of the 24-month cycle. So that 

is really not what you want if you focus again on some of these 

practical considerations about continuity. 

So if you look at the founding vision of the executive branch, its 

energy, its unity, its vigor, its dispatch, but one of the central ideas 

is one person always there, 24/7/365, and that is why you have this 

constitutionally designated understudy of the Vice President, who 

immediately takes over. That is why you have a provision that if 

both of them are out of action, there needs to be someone at every 

instant. 

In England, there is an idea of complete continuity: ‘‘The King 

is dead. Long live the King.’’ At every instant, our system actually 

has to have a President, and we should be certain who that person 

is, and the Commander in Chief line of military chain of command 

needs to know exactly who the President is at every instant. And 

the Speaker of the House is actually quite unfortunately designed 

with that practical consideration in mind. 

Mr. WASSERMAN. There was also a partisan concern that President Truman expressed to Congress that he wanted party continuity, if at all possible, and having settled on legislative succession, he acted on the belief that the House was more likely to be 

in party agreement, therefore the Speaker more likely to be in 

party agreement, than was the Senate. That has not been— 

Chairman LOTT. If you see this chart over here, that has not 

been the case. 

Mr. WASSERMAN. That has not proven to— 

Chairman LOTT. The last 50 years. 

Mr. WASSERMAN. But that is a product of the post—that type of 

divided Government I think is more of a product of the post-World 

War II society. I think prior to 1945, there was some validity or 

certainly more validity than there has been since the statute has 

been in place. 

Senator DODD. Dr. Fortier, you raised the issue of certain Cabinet officers, junior status, may be ill-equipped to perform the functions of the Presidency. Isn’t it, though, in a sense—I mean, given 

the fact that you would expect the sort of rallying around, on the 

assumption most Presidents have some fairly competent people 

around a Cabinet table, the fact that the line of succession may fall 

to someone who would be of more junior status, maybe less experienced—just think of this Cabinet, for instance. You look at Donald 

Rumsfeld or Colin Powell. You move on down the line. You could 

choose someone who may not have the same experience. And yet 

26 

having those individuals around would certainly minimize, 

wouldn’t it—it is a question—the lack of experience that a more 

junior member of that Cabinet might have if, in fact, it fell to that 

individual? 

Mr. FORTIER. My proposal is that the top five or top four—and 

we are talking about putting the Homeland Security Secretary in 

there as five Cabinet members—are always going to be very substantial figures that have some connection to national security, if 

we are talking about a catastrophic attack, which by definition we 

are if we are going down the line to people with those sort of qualifications. 

My additional proposal is that we have some offices created 

around the country with some substantial figures in them—the eligible sitting Governors or former Presidents, former Vice Presidents, Cabinet members, Members of Congress—who are—if we 

can create a way for them to be tapped into the current administration as advisers and coordinators for their regions of homeland 

security, those people, I argue, may be more qualified or more—we 

would feel more comfortable with them assuming the Presidency in 

an extreme circumstance than a Cabinet member of other departments who were probably picked for more specific policy reasons— 

knowledge of the field of education, knowledge of the field of agriculture. 

We could, by having these additional offices, make it a point that 

the main reason for having these people is to assume the Presidency in the worst case, and we are being explicit that that is why 

they are chosen rather than as a secondary reason. 

Senator DODD. Mr. Baker suggests, obviously, using Governors 

as part of this, but I gather the rest of you would have some hesitancy about having a Governor be very high up in a line of succession. But yet you just suggest somehow that having Governors of 

part of some elongated list would make some sense. Is that correct? 

Mr. FORTIER. I think that we are not too far off, Mr. Baker and 

I. I think— 

Senator DODD. Make a case for me in light of the California case 

here pending now. 

[Laughter.] 

Senator DODD. Here is that large State and a California Governor I presume would be—that would be sort of a natural choice. 

In light of what is going on in California, would you really want 

this to— 

Mr. BAKER. Senator, it depends upon the Governor. And that is 

why the President should have the discretion. I do not think the 

Congress should designate by State and say we will start off with 

California, New York, and Texas in that order. I think these kinds 

of questions are best left to the President’s discretion and his judgment who is among the pool of Governors of his party who is best 

suited to serve him. So if the President were allowed to nominate 

a sitting Governor and have that person confirmed by the Senate 

to be in this contingent role, I think that would provide a successor 

outside of Washington. 

Senator DODD. It would add a whole new dimension to the nomination process here, wouldn’t it? 

Mr. BAKER. It is always fun, Senator. 

27 

Chairman LOTT. Senator DeWine, thank you for being here for 

the entire hearing, and we would be glad to hear your questions. 

Senator DEWINE. Chairman, thank you very much. Let me just 

thank our panelists. I think you have some absolutely excellent 

suggestions. There is only one suggestion, I think, that is a little 

troubling to me, and that is the idea of the special election. Harry 

Truman is one of my favorite Presidents, but I think it is just a 

bad idea, and let me tell you why. 

I think the last thing in a time of crisis that we need is uncertainty, and what we do is certainty. And the idea on September 

11th that, if something had happened to President Bush, that we 

would have faced with a new President the specter of a special 

election in, say, 6 months is to me frightening. What we would 

have needed at that time is certainty that that man or woman who 

was the new President would have been able to serve the full term. 

That person would have been the President of the United States, 

and everybody in the world would have known it. And the idea that 

we would have faced a special election in 6 months I think to me 

is chilling. And so I think it is a horrible idea. Just the day and 

age we live in today I think it is just not a good idea. I do not think 

it was a good idea in 1945. I think Harry Truman did real well 

from 1945 to 1948, and I think history shows that. So just my comment. 

Thank you, Mr. Chairman. 

Chairman LOTT. Senator Cornyn? 

Senator CORNYN. Senator DeWine, I share your concerns about 

an election. As a matter of fact, last week, talking about the continuity of Congress, we have some competing proposals—one as a 

statutory fix, the other would be a constitutional amendment. And 

I guess perhaps again for the reason I stated earlier, because of the 

oft-stated concern about constitutional amendments and the difficulty in Article V in actually getting a constitutional amendment 

passed and ratified, the statutory fixes were proposed, including expedited elections. 

But one of the concerns that I would have about a quick election 

is, number one, the disenfranchisement of military voters, for example, that is a concern, not to mention in the wake of a 9/11 or 

worse the kind of chaos that would reign while we were trying to 

conduct an election process. 

So while obviously elections are important, ultimately there 

would be an election, but at least in the interim, I think stability 

and the need to provide some calm and clarity lest we get into 

more litigation or uncertainty is, I think, an initial process whereby 

it would devolve to another officer, as we have discussed earlier, it 

is far preferable to even an expedited election under those circumstances. But I would be glad to—Professor Amar, do you have 

any thoughts in that regard? 

Mr. AMAR. In an earlier, pre-9/11 article, I did suggest that if the 

statute were revised, I added just in the paragraph that we should 

really think about providing for a special election 8 months later. 

I was not thinking about 9/11 in 1996, and my main suggestion 

was to cure the unconstitutionality by pulling the legislative leaders out of the line of succession, and not just the unconstitutionality but the impracticality in a variety of policy settings where 

28 

this might occur. The statute just does not quite work as a practical matter. 

There is a tradeoff. To the extent that you get someone who is 

very highly validated by the American people as, say, the Vice 

President himself has never been, even in 1972, a provision for special election when Presidential power merely was transferred from 

President to Vice President, from Franklin Roosevelt to Harry Truman, partly under the idea perhaps that the American people already did vote for this person as their spare, as their next in line. 

Now, if you were to create a new office and President as a matter 

of custom or to name that person—to tell the American people before the election whom they were going to name, whether it was 

whom they were going to name as their Secretary of State, who is 

first in line, or whom they are going to name as their First Secretary, then, again, the election itself might have validated that 

person to serve out the President’s term, which, of course, is the 

25th Amendment model, too. You vote for Nixon, and he had a 4- 

year term, and if he cannot serve it out, it will be Agnew, whom 

you voted for; and if not Agnew, Ford, whom he has designated and 

who has been confirmed by a special process; and if not Ford, then 

Rockefeller. And so, actually, that 25th Amendment model, which 

I suggested as a possible template in the event that these things 

become—the disability occurs simultaneously rather than sequentially, that is not a special election model. 

The special election model might be more suitable if you are 

going to very far down the succession list. Then it is a little harder 

for the American—and if it is 3 years and 8 months or 3 years and 

9 months, very early in a Presidential term, very low down on the 

succession list, then there is the anxiety. And I do not think we 

would want to have it 2 months later, 3 months later, maybe 8 

months or 9 months. And then the question is: Is it worth the candle—if the disability, double disability occurred very early in a 

Presidential term, say a month in or at inauguration, it might be 

very different than if it occurs 3 years in or even 2 years in. 

One final thought, since you talked about the military and people 

voting and voting in a crisis. Here is an amazing fact about our history, let’s say, compared to the mother country, England. They do 

not have fixed and regular elections in their tradition. Parliament 

promised, try septennial elections—I mean triennial elections in 

the 1700s and then changed it. But during World War II, there was 

no election held in England between 1935 and 1945. Churchill 

gives up on Halloween 1944 and tells the House of Commons, ‘‘No 

one under 30’’—the generation that is actually making the supreme 

sacrifice. ‘‘No one under 30 has ever voted in a general election or 

a bye election; whereas, we held regular elections on time, even 

during the Great Depression and World War II, because President 

Lincoln held an election, one that he actually thought he was going 

to lose for a long time, but he held it fair and square on time with 

votes coming, the decisive votes, from the field, actually. 

So we have been able to run elections, although not special ones, 

even during moments of our greatest crises—the Civil War, the 

Great Depression, World War II—and, actually other countries 

have not always done it, even great democracies like Great Britain. 

29 

Senator CORNYN. Professor Amar, one last follow-up. You noted 

in your opening comments that you testified before the Subcommittee on the Constitution in 1994 on this very subject. Is that 

correct? 

Mr. AMAR. On a very closely related subject. 

Senator CORNYN. I do not recall what the context was. 

Mr. AMAR. That was about special windows of vulnerability right 

around election time and inauguration time. If one of the candidates is knocked out the week before the Presidential election, we 

are in serious trouble. If the person who actually won the seeming 

vote is knocked out prior to the meeting of the Electoral College, 

there are some real areas of difficulty. It is all cited in the notes 

to my testimony. I have asked, actually, that that be added to the 

record. That was Senator Simon chairing that Subcommittee back 

on Groundhog Day 1994. 

Senator CORNYN. Thank you very much. 

Thank you, Mr. Chairman. 

Chairman LOTT. Thank you again, Senator Cornyn, for your 

leadership, Senator Dodd, for coming, Senator DeWine, and the 

panel, thank you very much. We may have another hearing on this 

subject later on, but I hope we can find a way to actually act and 

get some results. 

In the meantime, I will be talking to Speaker Hastert and President pro tem Ted Stevens about how we get this accomplished. 

[Laughter.] 

Chairman LOTT. The hearing is adjourned. 

[Whereupon, at 11:02 a.m., the Committee was adjourned.] 

[Submissions for the record follow.] 

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