Take Your Paws off the Presidency!—A Commentary by Bruce Ackerman ’67
Take Your Paws off the Presidency!
By Bruce Ackerman ’67
Suppose the worst happens, and the next terrorist attack hits Washington hard, taking out the president and the vice president. What happens next?
New Yorker writer Jane Mayer's new book, The Dark Side, opens with a shocker. Apparently sometime in the 1980s, President Ronald Reagan issued a "secret executive order" that in the event of the death of the president and the vice president "established a means of re-creating the executive branch." Reagan's order violated the express terms of the Constitution and governing statutes.
Does a similar order exist today? We aren't told. But we do know that Dick Cheney participated in the secret "doomsday" exercises under the Reagan order, and given his central role at present, it is imperative for Congress to find out.
Congress last considered the problem of a dual vacancy in the presidency and the vice presidency when Harry Truman was in the White House. In the Presidential Succession Act of 1947, lawmakers stipulated that if both positions are empty, power passes first to the Speaker of the House or, if she, too, does not survive, to the president pro tem of the Senate. But relying on James Mann's earlier book Rise of the Vulcans, Mayer reports that Reagan "amended the process for speed and clarity … without informing Congress that it had been sidestepped." We don't know how. But if the order bypasses the speaker and the Senate president pro tempore in favor of an official in the executive branch, we have a recipe for a constitutional crisis.
With al-Qaida back in business in Pakistan and terrorist incidents proliferating around the world, this is no time to ignore that grim risk. A coup by the executive branch would be especially devastating at a time at which Democrats control the House. In the scenario I'm envisioning, Nancy Pelosi would assert her claim as acting president under existing statutes while Secretary of State Condoleezza Rice, or some other executive official, would simultaneously assert her competing authority under the executive order.
When confronting these competing claims, it would be the military that would call the shots. As the Washington Post reported three years ago, the Pentagon has "devised its first-ever war plans for guarding against and responding to terrorist attacks in the United States, envisioning 15 potential crisis scenarios and anticipating several simultaneous strikes around the country." In acting on these plans, would the Joint Chiefs choose to recognize the constitutional authority of Pelosi as commander in chief? Or would they respond to the commands of the executive official presiding over the "doomsday" crisis center at some "undisclosed location"? To ask the question is to answer it: The whole point of these "doomsday" exercises is to assure instant obedience to the will of the executive on the other side of the hot line. We are staring at a clear and present danger to the republic.
Where does the Bush administration figure into all of this? Since Sept. 11 , the question of presidential succession has been a preoccupation of some of the most responsible statesmen in Washington. Most notably, James Baker joined the late Lloyd Cutler to chair a bipartisan AEI-Brookings Institution commission on the subject. But their recommendations went nowhere in Congress, and I have always wondered why the Bush administration was content to remain on the sidelines. After all, the administration is certainly serious about terrorism. Why, then, didn't it take energetic steps to make much-needed revisions to the law of presidential succession inherited from the days of Harry Truman?
Despite the administration's repeated acts of lawlessness, I must confess to a certain naivete. It never occurred to me that Bush didn't care how Congress responded to the problem because he had issued a secret executive order that took the law into his own hands. After all, when he issued a public directive on the matter on continuity in government in 2007, he explicitly pledged to act "consistent[ly]" with the Presidential Succession Act. At the same time, however, his directive refers to a secret appendix. And as Ron Rosenbaum pointed out in Slate, even members of the House Committee on Homeland Security have been denied access to the document.
The committee, and Congress, should not take "no" for an answer. But they should also move beyond the appendix and demand to know whether investigative reports of a secret succession order are well-founded. If Reagan did issue an illegal order, Congress should publicly determine how subsequent administrations dealt with it. Perhaps President George H. W. Bush or Bill Clinton expressly repudiated the order. Or perhaps they reaffirmed it, thereby laying the foundation for President Bush, with the encouragement of Vice President Cheney, to do the same—through a process entirely independent of the administration's formal directives on the subject.
In any event, it is time for Congress to find out. Even if Reagan's initial illegal order has been rescinded, Congress must deprive it of all value as a precedent. Lawmakers should pass legislation that expressly nullifies all secret orders, present and future, through which the president asserts the imperial privilege of naming his own successor. We must decisively repudiate these illegal moves before they explode in our faces.
Bruce Ackerman is a professor of law at Yale. He discusses the problem of presidential succession at greater length in his book, Before the Next Attack.