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Author Topic: order of succession loophole?  (Read 21630 times)
J. J.
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« Reply #25 on: July 12, 2009, 10:45:54 pm »
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So, assuming, that Representative Minnick of Idaho (just for example) is places as a designated survivor and he's only one left, he can elect himself as a Speaker and assume the Presidency, correct?

Possibly.  The controlling law is 3 USC Sec. 19.

If everyone on the succession list is wiped out, Minnick becomes President once he becomes Speaker.



It would not necessary be Minnick, or any other House Member.  There is no statutory or constitutional requirement that the Speaker be a member (or even a citizen).  Provided the person elected Speaker is a natural born citizen, over 35, and been a resident for 14 years, whomever the survivor Representative elects becomes speaker.

Consider these possibilities; Representative Jones is the survivor Representative, in all cases.

1.  Jones is old or has a serious illness; the strain of being president would kill him in three months.  Jones elects a popular capable Governor or Senator, who is eligible to be President, as Speaker.

2.  Everyone else is killed in an attack.  The National Security Adviser, not in line of succession, but eligible to be President, was out of town and survives.  Jones elects him because he can better do the job in a national emergency.

3.  The vacancies occur after a clear electoral victory for a presidential candidate (not in succession) but before the start of the term.  Jones elects the president elect (not in the line of succession) as Speaker.

4.  Jones simply knows that, while he might be a good Congressman, he'd be a lousy president.  Maybe he's gay and in the closet, and doesn't want it to come out.  Maybe he's having an affair with an Israeli woman and would see a national security issue if he were not just some minor Congressman from Butte, Montana.

5.  Maybe Jones is 32 years old, or was born in the UK and can be the Speaker, but not President.

Jones might be the kingmaker, but not the king.



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« Reply #26 on: September 10, 2009, 07:41:57 pm »
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If there was no cabinet in place yet, and the Pres, VP, Speaker and Pro-Tempore are killed, then then any remaining members of the House would get together, elect the Speaker who would become an interim President until the House appoints someone to finish the term...

In the case of Obama --regardless if he takes the oath, the constitution gives him power at 12:00pm on January 20th 2008.

If Obama, Bryd, Pelosi and Biden were killed minutes after then Robert Gates would  become President. He was kept away as the designated survivor and didn't need to be reconfirmed by the Senate.
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« Reply #27 on: September 11, 2009, 06:48:32 am »
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If there was no cabinet in place yet, and the Pres, VP, Speaker and Pro-Tempore are killed, then then any remaining members of the House would get together, elect the Speaker who would become an interim President until the House appoints someone to finish the term...

In the case of Obama --regardless if he takes the oath, the constitution gives him power at 12:00pm on January 20th 2008.

If Obama, Bryd, Pelosi and Biden were killed minutes after then Robert Gates would  become President. He was kept away as the designated survivor and didn't need to be reconfirmed by the Senate.

As discussed here, the question is whether Rice is still SoS minutes after Obama is sworn in or not.  Does the Cabinet of the outgoing president automatically lose their jobs the second that the new president is sworn in, or are they legally still Cabinet secretaries until their replacements are sworn in?
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« Reply #28 on: September 12, 2009, 12:36:43 am »
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If there was no cabinet in place yet, and the Pres, VP, Speaker and Pro-Tempore are killed, then then any remaining members of the House would get together, elect the Speaker who would become an interim President until the House appoints someone to finish the term...

In the case of Obama --regardless if he takes the oath, the constitution gives him power at 12:00pm on January 20th 2008.

If Obama, Bryd, Pelosi and Biden were killed minutes after then Robert Gates would  become President. He was kept away as the designated survivor and didn't need to be reconfirmed by the Senate.

As discussed here, the question is whether Rice is still SoS minutes after Obama is sworn in or not.  Does the Cabinet of the outgoing president automatically lose their jobs the second that the new president is sworn in, or are they legally still Cabinet secretaries until their replacements are sworn in?


It is traditional in a change of administration for the outgoing cabinet to resign effective noon, January 20, unless as happened with Gates, the President plans to keep them on.  Thus Gates did not need to be reconfirmed.  That also was the case for William Joseph Burns, Under Secretary of State for Political Affairs, who served as Acting Secretary of State for a day until Clinton was confirmed on the 21st. However, the succession law explicitly provides that acting secretaries are not in the order of succession.
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« Reply #29 on: September 12, 2009, 07:55:37 am »
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OK, but it's only traditional and not legally required?  The outgoing Cabinet doesn't instantaneously lose their jobs at the stroke of noon on Jan. 20th if they haven't taken the active step to resign?

In that case, then I guess, yeah, if Rice hadn't resigned, then, had Obama, Biden, Pelosi, and Byrd all died minutes after noon on Jan. 20th....Rice would've still been SoS and thus the order of succession would have fallen to her her, and she'd take over as president.....even though she was appointed by a president of the other party, and was about to lose her job to Hillary Clinton.
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« Reply #30 on: August 29, 2010, 02:39:26 am »
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I expect that since Secretary Gates is currently scheduled to continue on as SoD in the Obama cabinet, he'll be the designated survivor and will not show up at the inauguration.  Gates doesn't need to be reconfirmed, so he'll provide the necessary continuity of government.

In addition to that, there have been numerous examples of a cabinet Secretary staying in office a few days into the term of a new President until his nominated successor is confirmed.  Most often it's been the Secretary of State, although the ast time that happened for Secretary of State was in 1913 when Taft's Secretary of State Philander Chase Knox remained in office until March 5, 1913 when Wilson's SoS William Jennings Bryan was confirmed.  Indeed the Taft/Wilson transition appears to be the last time any of the cabinet chose to hang around an extra day or two with the succeeding president being of the opposite party (Taft's Secretary of the Treasury also stayed an extra day.)  However several of Reagan's Secretaries remained a few days until GHWB's nominees took office.

*BUMP*

I think this points the way to a solution to the original question.  The OP is suggesting there must be some strict, highly technical solution to the situation discussed.  The above history, however, suggests that the system is actually very flexible and adaptable.  So, a highly technical and legalistic view may be the wrong one.
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« Reply #31 on: August 29, 2010, 02:51:34 pm »
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I expect that since Secretary Gates is currently scheduled to continue on as SoD in the Obama cabinet, he'll be the designated survivor and will not show up at the inauguration.  Gates doesn't need to be reconfirmed, so he'll provide the necessary continuity of government.

In addition to that, there have been numerous examples of a cabinet Secretary staying in office a few days into the term of a new President until his nominated successor is confirmed.  Most often it's been the Secretary of State, although the ast time that happened for Secretary of State was in 1913 when Taft's Secretary of State Philander Chase Knox remained in office until March 5, 1913 when Wilson's SoS William Jennings Bryan was confirmed.  Indeed the Taft/Wilson transition appears to be the last time any of the cabinet chose to hang around an extra day or two with the succeeding president being of the opposite party (Taft's Secretary of the Treasury also stayed an extra day.)  However several of Reagan's Secretaries remained a few days until GHWB's nominees took office.

*BUMP*

I think this points the way to a solution to the original question.  The OP is suggesting there must be some strict, highly technical solution to the situation discussed.  The above history, however, suggests that the system is actually very flexible and adaptable.  So, a highly technical and legalistic view may be the wrong one.


Not really.

Some new presidents want a clean sweep, or at least want to put cabinet officers in different positions.

Supposed that Rice resigned "upon the confirmation of my successor."  1/20/09 at 12:38 PM, Obama, Biden, Pelosi and Byrd die.  Rice is POTUS until 1/20/13, even though she was part of an administration that was not re-elected.
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« Reply #32 on: January 21, 2017, 01:19:08 pm »
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*bump*

This is quasi-relevant again, now that we don't have a Secretary of State.  Tom Shannon is currently the "acting" Secretary of State.  So is he in the order of succession or not?  If Trump, Pence, Ryan, and Hatch all dropped dead today, would Shannon become president?  Or does it skip over him to whichever is the first Cabinet secretary who isn't "acting" (which in this case would be Mattis)?
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« Reply #33 on: January 21, 2017, 02:22:16 pm »
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*bump*

This is quasi-relevant again, now that we don't have a Secretary of State.  Tom Shannon is currently the "acting" Secretary of State.  So is he in the order of succession or not?  If Trump, Pence, Ryan, and Hatch all dropped dead today, would Shannon become president?  Or does it skip over him to whichever is the first Cabinet secretary who isn't "acting" (which in this case would be Mattis)?


The language in the Presidential Succession Act of 1947, w/ respect to Senate confirmation, refers to "officers appointed, by and with the advice and consent of the Senate." Read literally, this means that the act allows for Acting Secretaries to be in the line of succession as long as they're confirmed by the Senate for a post (even for ex., the 2nd or 3rd in command w/in a dept.). The lang. clearly permits Acting Secretaries to be placed in the line of succession; former Acting Secretaries have even been spoken to & confirmed they'd been placed in the line of succession.

In fact, here's the current presidential line of succession:


So yes, if Trump, Pence, Ryan, & Hatch all dropped dead today, Shannon would become Acting President. However, b/c of the "bumping" provision of the Presidential Succession Act of 1947, Shannon (as a cabinet officer) could serve as Acting President only until a new Speaker of the House or a new President pro tempore of the Senate is chosen (whichever's first), who'd then become Acting President &, under the 1947 Act, would be able to "act as President until the expiration of the then current Presidential term" on January 20, 2021.
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« Reply #34 on: January 21, 2017, 02:32:22 pm »
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So yes, if Trump, Pence, Ryan, & Hatch all dropped dead today, Shannon would become Acting President. However, b/c of the "bumping" provision of the Presidential Succession Act of 1947, Shannon (as a cabinet officer) could serve as Acting President only until a new Speaker of the House or a new President pro tempore of the Senate is chosen (whichever's first), who'd then become Acting President &, under the 1947 Act, would be able to "act as President until the expiration of the then current Presidential term" on January 20, 2021.

Ah, OK, and the House can elect anyone they want as Speaker, even if they're not members of the House, isn't that right?  So in this case, the House Republican caucus could simply agree amongst themselves that they want Marco Rubio to be president, they elect him Speaker, and he becomes acting president until the end of Trump's term?

On a related note, am I remembering correctly that there's even some kind of order of succession for Speaker of the House?  I seem to remember reading years ago that Hastert had a designated successor who would take over as acting Speaker were he to die, but maybe I'm remembering that wrong.
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« Reply #35 on: January 21, 2017, 05:30:00 pm »
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So yes, if Trump, Pence, Ryan, & Hatch all dropped dead today, Shannon would become Acting President. However, b/c of the "bumping" provision of the Presidential Succession Act of 1947, Shannon (as a cabinet officer) could serve as Acting President only until a new Speaker of the House or a new President pro tempore of the Senate is chosen (whichever's first), who'd then become Acting President &, under the 1947 Act, would be able to "act as President until the expiration of the then current Presidential term" on January 20, 2021.

Ah, OK, and the House can elect anyone they want as Speaker, even if they're not members of the House, isn't that right?  So in this case, the House Republican caucus could simply agree amongst themselves that they want Marco Rubio to be president, they elect him Speaker, and he becomes acting president until the end of Trump's term?

On a related note, am I remembering correctly that there's even some kind of order of succession for Speaker of the House?  I seem to remember reading years ago that Hastert had a designated successor who would take over as acting Speaker were he to die, but maybe I'm remembering that wrong.


Yes, the House of Representatives isn't restricted to choosing someone who's a member of the House & may choose any person, even someone who isn't a member of the House at all. However, if Congressional Republicans made it known that they wanted Marco Rubio to be the new President rather than the actual Speaker-designate, then it'd just be easier & more likely (& less superfluous) for the Senate to just choose Rubio as their new President pro tempore (especially since the Presidential Succession Act's "bumping" provision only applies to cabinet officers & not congressional leaders).

However, there's no formal line of succession to the Speakership. When a vacancy in the office arrives, the new Speaker would (as usual) be chosen by the majority party from among its senior leaders. While it's true that the Speaker may delegate his powers to a member of the House to act as Speaker pro tempore & preside over the House in the Speaker's absence, that only applies to the Speaker's role as presiding officer of the House of Representatives & not to the office of Speaker itself.
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« Reply #36 on: January 21, 2017, 05:53:26 pm »
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CNN received criticism this week for discussing the possibility of a terrorist attack at the inauguration, before Trump and Pence were sworn in.  They were saying that Obama's Designated Survivor (which wound up being Jeh Johnson) would have taken over for four years.  Many people viewed this report as potentially a threat against Trump, Pence, and Ryan.
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« Reply #37 on: January 21, 2017, 06:19:40 pm »
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CNN received criticism this week for discussing the possibility of a terrorist attack at the inauguration, before Trump and Pence were sworn in.  They were saying that Obama's Designated Survivor (which wound up being Jeh Johnson) would have taken over for four years.  Many people viewed this report as potentially a threat against Trump, Pence, and Ryan.

But Hatch wasn't at the Inauguration either...
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« Reply #38 on: January 21, 2017, 08:57:19 pm »
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*bump*

This is quasi-relevant again, now that we don't have a Secretary of State.  Tom Shannon is currently the "acting" Secretary of State.  So is he in the order of succession or not?  If Trump, Pence, Ryan, and Hatch all dropped dead today, would Shannon become president?  Or does it skip over him to whichever is the first Cabinet secretary who isn't "acting" (which in this case would be Mattis)?


The language in the Presidential Succession Act of 1947, w/ respect to Senate confirmation, refers to "officers appointed, by and with the advice and consent of the Senate." Read literally, this means that the act allows for Acting Secretaries to be in the line of succession as long as they're confirmed by the Senate for a post (even for ex., the 2nd or 3rd in command w/in a dept.). The lang. clearly permits Acting Secretaries to be placed in the line of succession; former Acting Secretaries have even been spoken to & confirmed they'd been placed in the line of succession.
You are overlooking that "officers appointed" applies only to the officers listed in 3 USC 19(d).

Just because the deputy secretary of state has been confirmed by the Senate, does not make him the Secretary of the Senate. That a person may discharge the duties of the Secretary of State does not make them the Secretary of State. If Congress wanted the person acting for the Secretary of State to become acting President, they could have written that into the law. To become acting president is not a duty of an acting Secretary of State; it is an office that is conferred upon the Secretary of State.
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« Reply #39 on: January 22, 2017, 08:43:18 am »
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*bump*

This is quasi-relevant again, now that we don't have a Secretary of State.  Tom Shannon is currently the "acting" Secretary of State.  So is he in the order of succession or not?  If Trump, Pence, Ryan, and Hatch all dropped dead today, would Shannon become president?  Or does it skip over him to whichever is the first Cabinet secretary who isn't "acting" (which in this case would be Mattis)?


The language in the Presidential Succession Act of 1947, w/ respect to Senate confirmation, refers to "officers appointed, by and with the advice and consent of the Senate." Read literally, this means that the act allows for Acting Secretaries to be in the line of succession as long as they're confirmed by the Senate for a post (even for ex., the 2nd or 3rd in command w/in a dept.). The lang. clearly permits Acting Secretaries to be placed in the line of succession; former Acting Secretaries have even been spoken to & confirmed they'd been placed in the line of succession.
You are overlooking that "officers appointed" applies only to the officers listed in 3 USC 19(d).

Just because the deputy secretary of state has been confirmed by the Senate, does not make him the Secretary of the Senate. That a person may discharge the duties of the Secretary of State does not make them the Secretary of State. If Congress wanted the person acting for the Secretary of State to become acting President, they could have written that into the law. To become acting president is not a duty of an acting Secretary of State; it is an office that is conferred upon the Secretary of State.

No, YOU are overlooking the fact that the inclusion of Acting Secretaries in the line of succession is supported by a comparison of the language in the 1947 Presidential Succession Act & the 1886 Act. The 1886 Act explicitly included only cabinet secretaries confirmed as such. After enumerating the list of cabinet secretaries who were included in the line of succession, section 2 of the 1886 Act provided "[t]hat the preceding section shall only be held to describe and apply to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named." In contrast, the lang. of the 1947 Act is less clear. Section 1(d)(1) of the 1947 Act provides that "the officer of the United States who is highest on the following list [referring to a list of cabinet secretaries], and who is not under disability to discharge the powers and duties of the office of President shall act as President." Section 1(e) goes on to state, "Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate. Read literally, this means that the current act allows for Acting Secretaries to be in the line of succession as long as they're confirmed by the Senate for a post; the lang. clearly permits Acting Secretaries to be placed in the line of succession.
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« Reply #40 on: January 23, 2017, 02:57:33 pm »
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*bump*

This is quasi-relevant again, now that we don't have a Secretary of State.  Tom Shannon is currently the "acting" Secretary of State.  So is he in the order of succession or not?  If Trump, Pence, Ryan, and Hatch all dropped dead today, would Shannon become president?  Or does it skip over him to whichever is the first Cabinet secretary who isn't "acting" (which in this case would be Mattis)?


The language in the Presidential Succession Act of 1947, w/ respect to Senate confirmation, refers to "officers appointed, by and with the advice and consent of the Senate." Read literally, this means that the act allows for Acting Secretaries to be in the line of succession as long as they're confirmed by the Senate for a post (even for ex., the 2nd or 3rd in command w/in a dept.). The lang. clearly permits Acting Secretaries to be placed in the line of succession; former Acting Secretaries have even been spoken to & confirmed they'd been placed in the line of succession.
You are overlooking that "officers appointed" applies only to the officers listed in 3 USC 19(d).

Just because the deputy secretary of state has been confirmed by the Senate, does not make him the Secretary of the Senate. That a person may discharge the duties of the Secretary of State does not make them the Secretary of State. If Congress wanted the person acting for the Secretary of State to become acting President, they could have written that into the law. To become acting president is not a duty of an acting Secretary of State; it is an office that is conferred upon the Secretary of State.

No, YOU are overlooking the fact that the inclusion of Acting Secretaries in the line of succession is supported by a comparison of the language in the 1947 Presidential Succession Act & the 1886 Act. The 1886 Act explicitly included only cabinet secretaries confirmed as such. After enumerating the list of cabinet secretaries who were included in the line of succession, section 2 of the 1886 Act provided "[t]hat the preceding section shall only be held to describe and apply to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named." In contrast, the lang. of the 1947 Act is less clear. Section 1(d)(1) of the 1947 Act provides that "the officer of the United States who is highest on the following list [referring to a list of cabinet secretaries], and who is not under disability to discharge the powers and duties of the office of President shall act as President." Section 1(e) goes on to state, "Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate. Read literally, this means that the current act allows for Acting Secretaries to be in the line of succession as long as they're confirmed by the Senate for a post; the lang. clearly permits Acting Secretaries to be placed in the line of succession.
3 USC 19(d) lists specific officers in a specific order. It is rather bizarre that you apply the word "literally" to subsection (e), when it is subsection (d) that has a precise list of officers.

If subsection (e) were not present, you would not interpret subsection (d) as meaning Undersecretary of State. The first sentence of subsection (e) limits (a), (b), and (d) to qualified individuals, excluding non-natural born citizens such as Henry Kissinger and Madeleine Albright. It seems odd that you would interpret the second sentence as expanding the number of persons, rather than limiting it further, excluding anybody with a recess appointment.

This report, The Continuity of the Presidency: The Second Report of the Continuity of Government Commission, appears to support your argument, though it is far from unequivocal. The report also argues that is unconstitutional for congressional officers to be in the succession, and that most cabinet secretaries should not be in the succession, so it bolsters there case that deputy undersecretaries "might" be in the succession.
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« Reply #41 on: January 23, 2017, 10:06:34 pm »
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*bump*

This is quasi-relevant again, now that we don't have a Secretary of State.  Tom Shannon is currently the "acting" Secretary of State.  So is he in the order of succession or not?  If Trump, Pence, Ryan, and Hatch all dropped dead today, would Shannon become president?  Or does it skip over him to whichever is the first Cabinet secretary who isn't "acting" (which in this case would be Mattis)?


The language in the Presidential Succession Act of 1947, w/ respect to Senate confirmation, refers to "officers appointed, by and with the advice and consent of the Senate." Read literally, this means that the act allows for Acting Secretaries to be in the line of succession as long as they're confirmed by the Senate for a post (even for ex., the 2nd or 3rd in command w/in a dept.). The lang. clearly permits Acting Secretaries to be placed in the line of succession; former Acting Secretaries have even been spoken to & confirmed they'd been placed in the line of succession.
You are overlooking that "officers appointed" applies only to the officers listed in 3 USC 19(d).

Just because the deputy secretary of state has been confirmed by the Senate, does not make him the Secretary of the Senate. That a person may discharge the duties of the Secretary of State does not make them the Secretary of State. If Congress wanted the person acting for the Secretary of State to become acting President, they could have written that into the law. To become acting president is not a duty of an acting Secretary of State; it is an office that is conferred upon the Secretary of State.

No, YOU are overlooking the fact that the inclusion of Acting Secretaries in the line of succession is supported by a comparison of the language in the 1947 Presidential Succession Act & the 1886 Act. The 1886 Act explicitly included only cabinet secretaries confirmed as such. After enumerating the list of cabinet secretaries who were included in the line of succession, section 2 of the 1886 Act provided "[t]hat the preceding section shall only be held to describe and apply to such officers as shall have been appointed by the advice and consent of the Senate to the offices therein named." In contrast, the lang. of the 1947 Act is less clear. Section 1(d)(1) of the 1947 Act provides that "the officer of the United States who is highest on the following list [referring to a list of cabinet secretaries], and who is not under disability to discharge the powers and duties of the office of President shall act as President." Section 1(e) goes on to state, "Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate. Read literally, this means that the current act allows for Acting Secretaries to be in the line of succession as long as they're confirmed by the Senate for a post; the lang. clearly permits Acting Secretaries to be placed in the line of succession.
3 USC 19(d) lists specific officers in a specific order. It is rather bizarre that you apply the word "literally" to subsection (e), when it is subsection (d) that has a precise list of officers.

If subsection (e) were not present, you would not interpret subsection (d) as meaning Undersecretary of State. The first sentence of subsection (e) limits (a), (b), and (d) to qualified individuals, excluding non-natural born citizens such as Henry Kissinger and Madeleine Albright. It seems odd that you would interpret the second sentence as expanding the number of persons, rather than limiting it further, excluding anybody with a recess appointment.

This report, The Continuity of the Presidency: The Second Report of the Continuity of Government Commission, appears to support your argument, though it is far from unequivocal. The report also argues that is unconstitutional for congressional officers to be in the succession, and that most cabinet secretaries should not be in the succession, so it bolsters there case that deputy undersecretaries "might" be in the succession.

Section 1(d)(1) of the Presidential Succession Act of 1947 (aka 3 USC 19(d)(1), which you yourself have based your whole interpretation on) states only that "the officer of the United States who is highest on the following list... shall act as President." There's no distinction made (WHATSOEVER) bet. an Acting Secretary or a cabinet Secretary who was appointed & confirmed as such. Thus, an Acting Secretary WOULD have a valid claim to become Acting President.
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« Reply #42 on: January 24, 2017, 06:48:59 am »
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This report, a joint effort of the American Enterprise Institute and the Brookings Institution explores problems with the current succession in case of a catastrophic attack on the government.

The Continuity of the Presidency: The Second Report of the Continuity of Government Commission

In their scenario, where the attack occurs at the State of the Union, all of the Senate and all but 20 representatives are killed, with only five able to actually participate. The Secretary of Agriculture becomes acting president. Five Supreme Court justices are killed, so there is no authoritative body to adjudicate any disputes.

The president recovers but is quite weak, but collapses during a meeting with the PM of Denmark, who happened to be in town. The Secretary of Agriculture was forced to resign his cabinet position in order to act as President, and can't act a second time.

Senators are appointed by the governors (only 45 states permit such appointments), and a former Secretary of State is named Senate President Pro Tem (apparently Governor Abbott appointed James Baker). Meanwhile the House uses an old precedent that a quorum is 50% of those elected and alive, along with an interpretation that the 15 disabled representatives are as good as dead, and a quorum is 3 of 5 representatives, until replacements can be elected. There is also a claimant in an Undersecretary of State.

The report states that it is unconstitutional for a congressional officer to become president. It suggests that only the first four cabinet officers (Secretaries of
State, Treasury, and Defence; and the Attorney General) be in the line of succession; and that up to five other successors who reside outside D.C. be designated successors. It also suggests that there be an explicit procedures for transitioning between officers in cases of disability, etc.

They also recommended that the meeting of presidential electors be moved to a couple of days prior to the day of counting by Congress, since the president-elect would already be known by then.
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« Reply #43 on: January 24, 2017, 07:02:37 am »
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This report, a joint effort of the American Enterprise Institute and the Brookings Institution explores problems with the current succession in case of a catastrophic attack on the government.

The Continuity of the Presidency: The Second Report of the Continuity of Government Commission

In their scenario, where the attack occurs at the State of the Union, all of the Senate and all but 20 representatives are killed, with only five able to actually participate. The Secretary of Agriculture becomes acting president. Five Supreme Court justices are killed, so there is no authoritative body to adjudicate any disputes.

The president recovers but is quite weak, but collapses during a meeting with the PM of Denmark, who happened to be in town. The Secretary of Agriculture was forced to resign his cabinet position in order to act as President, and can't act a second time.

Senators are appointed by the governors (only 45 states permit such appointments), and a former Secretary of State is named Senate President Pro Tem (apparently Governor Abbott appointed James Baker). Meanwhile the House uses an old precedent that a quorum is 50% of those elected and alive, along with an interpretation that the 15 disabled representatives are as good as dead, and a quorum is 3 of 5 representatives, until replacements can be elected. There is also a claimant in an Undersecretary of State.

The report states that it is unconstitutional for a congressional officer to become president. It suggests that only the first four cabinet officers (Secretaries of
State, Treasury, and Defence; and the Attorney General) be in the line of succession; and that up to five other successors who reside outside D.C. be designated successors. It also suggests that there be an explicit procedures for transitioning between officers in cases of disability, etc.

They also recommended that the meeting of presidential electors be moved to a couple of days prior to the day of counting by Congress, since the president-elect would already be known by then.

The House can act with a majority incapacitated, but it is provisional, and can be undone by the full House later. Assuming that isn't an issue, 5 representatives would probably elect a non member as speaker, and then have them sworn in as President, so as to not give up one of only 5 House seats, when it would be a while before someone new could be elected. The Senate would have no problem establishing a proper quorum from the governors, so perhaps they'd just pick the Senate Pro Tempore from some state that could quickly appoint another Senator.
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« Reply #44 on: January 24, 2017, 08:27:44 am »
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3 USC 19(d) lists specific officers in a specific order. It is rather bizarre that you apply the word "literally" to subsection (e), when it is subsection (d) that has a precise list of officers.

If subsection (e) were not present, you would not interpret subsection (d) as meaning Undersecretary of State. The first sentence of subsection (e) limits (a), (b), and (d) to qualified individuals, excluding non-natural born citizens such as Henry Kissinger and Madeleine Albright. It seems odd that you would interpret the second sentence as expanding the number of persons, rather than limiting it further, excluding anybody with a recess appointment.

This report, The Continuity of the Presidency: The Second Report of the Continuity of Government Commission, appears to support your argument, though it is far from unequivocal. The report also argues that is unconstitutional for congressional officers to be in the succession, and that most cabinet secretaries should not be in the succession, so it bolsters there case that deputy undersecretaries "might" be in the succession.

Section 1(d)(1) of the Presidential Succession Act of 1947 (aka 3 USC 19(d)(1), which you yourself have based your whole interpretation on) states only that "the officer of the United States who is highest on the following list... shall act as President." There's no distinction made (WHATSOEVER) bet. an Acting Secretary or a cabinet Secretary who was appointed & confirmed as such. Thus, an Acting Secretary WOULD have a valid claim to become Acting President.
"Secretary of State" is on that list. In fact, it is highest on that list. Your use of an ellipsis may be an attempt to obscure that fundamental point.

Does "Undersecretary of State for Political Affairs" appear in that list? No! Do you disagree?

Now let's look at 5 USC 3345 (a)(2) which is the basis for the Undersecretary of State for Political Affairs acting as secretary of state. (See also Executive Order 13251).

"to perform the functions and duties of the vacant office temporarily in an acting capacity". Tom Shannon is acting as Secretary of State because there is NO Secretary of State, or Deputy Secretaries of State because the previous officers have resigned. There is NO Secretary of State until Rex Tillerson is confirmed by the Senate, or President Trump makes a recess appointment.

It is absurd for you to claim that there is no distinction. Your placing "whatsoever" in capital letters is the equivalent of a lawyer banging on the table, when there are no facts or laws to be banged on.

One who performs the functions of a vacant office temporarily, does not cause the vacancy to be filled. The office remains vacant.

If the Secretary of State is not eligible to be President, due to age, not being a natural-born citizen, not having been resident in the US for 14 years previous, then the first sentence of 3 USC 19(e) excludes him from acting as president; it does not extent the definition of Secretary of State to include other individuals.

The second sentence excludes officers on the list in 3 USC 19(d) who have not been confirmed by the Senate (e.g recess appointments).
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« Reply #45 on: January 24, 2017, 09:56:39 am »
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The Continuity of the Presidency: The Second Report of the Continuity of Government Commission

In their scenario, where the attack occurs at the State of the Union, all of the Senate and all but 20 representatives are killed, with only five able to actually participate. The Secretary of Agriculture becomes acting president. Five Supreme Court justices are killed, so there is no authoritative body to adjudicate any disputes.

The president recovers but is quite weak, but collapses during a meeting with the PM of Denmark, who happened to be in town. The Secretary of Agriculture was forced to resign his cabinet position in order to act as President, and can't act a second time.

Senators are appointed by the governors (only 45 states permit such appointments), and a former Secretary of State is named Senate President Pro Tem (apparently Governor Abbott appointed James Baker). Meanwhile the House uses an old precedent that a quorum is 50% of those elected and alive, along with an interpretation that the 15 disabled representatives are as good as dead, and a quorum is 3 of 5 representatives, until replacements can be elected. There is also a claimant in an Undersecretary of State.

The report states that it is unconstitutional for a congressional officer to become president. It suggests that only the first four cabinet officers (Secretaries of
State, Treasury, and Defence; and the Attorney General) be in the line of succession; and that up to five other successors who reside outside D.C. be designated successors. It also suggests that there be an explicit procedures for transitioning between officers in cases of disability, etc.

They also recommended that the meeting of presidential electors be moved to a couple of days prior to the day of counting by Congress, since the president-elect would already be known by then.

The House can act with a majority incapacitated, but it is provisional, and can be undone by the full House later. Assuming that isn't an issue, 5 representatives would probably elect a non member as speaker, and then have them sworn in as President, so as to not give up one of only 5 House seats, when it would be a while before someone new could be elected. The Senate would have no problem establishing a proper quorum from the governors, so perhaps they'd just pick the Senate Pro Tempore from some state that could quickly appoint another Senator.
[/quote]
Has the House ever acted with a majority incapacitated? Note that 3 USC 19 implies that the Speaker will be a Representative, since a requirement of becoming an acting president is to resign a position as representative.

There is also the constitutional issue of whether congressional officers are officers of the United States. With five justices killed, there is no way for the SCOTUS to adjudicate the constitutionality of 3 USC 19 (and it is undesirable for adjudication to be required under such circumstances).

In the scenario presented in the report, the governors did appoint enough senators to form a quorum, and they named a former Secretary of State to serve as Senate President Pro Tem. Governors Baker, Cuomo, McAuliffe, or Brown are unlikely to appoint Kerry, Clinton, Powell, or Rice. Kissinger and Albright are ineligible to be acting president. Schultz is to old. That is why James Baker is the apparent choice.
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« Reply #46 on: January 24, 2017, 08:33:08 pm »
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"Secretary of State" is on that list. In fact, it is highest on that list. Your use of an ellipsis may be an attempt to obscure that fundamental point.

  • 3 USC 19(d)(1): If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.

Look, if you want to have a coherent discussion, that's fine, but if you're gonna accuse me of using an ellipsis to "obscure that fundamental" list when you know very well (or, at least, you would know very well if you'd actually read 3 USC 19(d)(1), as you've claimed to) that the ellipsis was to skip "and who is not under disability to discharge the powers and duties of the office of President" (a frankly unimportant part of the subsection to note for the purpose of this discussion) is very indecorous of you, to say the least.

Does "Undersecretary of State for Political Affairs" appear in that list? No! Do you disagree?

To continue, I don't disagree that Under Secretary of State for Political Affairs isn't on that list; to disagree w/ that would be equivalent to spreading a falsehood an alternative fact.

Now let's look at 5 USC 3345 (a)(2) which is the basis for the Undersecretary of State for Political Affairs acting as secretary of state. (See also Executive Order 13251). "to perform the functions and duties of the vacant office temporarily in an acting capacity". Tom Shannon is acting as Secretary of State because there is NO Secretary of State, or Deputy Secretaries of State because the previous officers have resigned. There is NO Secretary of State until Rex Tillerson is confirmed by the Senate, or President Trump makes a recess appointment.

I'm afraid you've misquoted Executive Order 13251 of December 28, 2001 (Providing an Order of Succession Within the Department of State), so here's the actual quote for you:

  • "Section 1. Subject to the provisions of section 3 of this order, the officers named in section 2, in the order listed, shall act as, and perform the duties of, the office of Secretary of State (Secretary) during any period in which the Secretary has died, resigned, or otherwise become unable to perform the functions and duties of the office of Secretary."

So, after having further disproved the falsehoods alternative facts of your argument, you now know that Tom Shannon is Acting Secretary of State. He's serving as Secretary of State in an acting capacity. By virtue of Exec. Order 13251 of Dec. 28, 2001, Tom Shannon IS Secretary of State. Let me put it in simpler words: There is indeed a Secretary of State; his name is Tom Shannon. He's serving as Secretary of State in an acting capacity, but he IS Secretary of State.

It is absurd for you to claim that there is no distinction. Your placing "whatsoever" in capital letters is the equivalent of a lawyer banging on the table, when there are no facts or laws to be banged on.

See previous response above.

One who performs the functions of a vacant office temporarily, does not cause the vacancy to be filled. The office remains vacant.

See previous response above.

If the Secretary of State is not eligible to be President, due to age, not being a natural-born citizen, not having been resident in the US for 14 years previous, then the first sentence of 3 USC 19(e) excludes him from acting as president; it does not extent the definition of Secretary of State to include other individuals.

You can refuse to listen all you want but as I've previously stated, 3 USC 19(d)(1) states that "the officer of the United States who is highest on the following list... shall act as President." There's no distinction made bet. an Acting Secretary or a cabinet Secretary who was appointed & confirmed as such, meaning an Acting Secretary has a valid claim to become Acting President.

The second sentence excludes officers on the list in 3 USC 19(d) who have not been confirmed by the Senate (e.g recess appointments).

Tom Shannon was confirmed by the Senate by voice vote as Under Secretary of State for Political Affairs (the office by virtue of which he is currently serving as Acting Secretary of State) on February 12, 2016.
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« Reply #47 on: January 25, 2017, 01:16:00 am »
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Has the House ever acted with a majority incapacitated? Note that 3 USC 19 implies that the Speaker will be a Representative, since a requirement of becoming an acting president is to resign a position as representative.

There is also the constitutional issue of whether congressional officers are officers of the United States. With five justices killed, there is no way for the SCOTUS to adjudicate the constitutionality of 3 USC 19 (and it is undesirable for adjudication to be required under such circumstances).

In the scenario presented in the report, the governors did appoint enough senators to form a quorum, and they named a former Secretary of State to serve as Senate President Pro Tem. Governors Baker, Cuomo, McAuliffe, or Brown are unlikely to appoint Kerry, Clinton, Powell, or Rice. Kissinger and Albright are ineligible to be acting president. Schultz is to old. That is why James Baker is the apparent choice.

The rules were only changed to allow that in 2005. I don't know of a case where there's been been a vote without a majority of the House. 174 were absent for the Schiavo Bill. Somehow it passed the Senate 3-0, with 97 absent.

I think the part about them resigning as representative can be ignored if they aren't a representative.
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« Reply #48 on: January 25, 2017, 07:05:24 pm »
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In the scenario presented in the report, the governors did appoint enough senators to form a quorum, and they named a former Secretary of State to serve as Senate President Pro Tem. Governors Baker, Cuomo, McAuliffe, or Brown are unlikely to appoint Kerry, Clinton, Powell, or Rice. Kissinger and Albright are ineligible to be acting president. Schultz is to old. That is why James Baker is the apparent choice.

  • The scenario was presented in June 2009, so then-incumbent Secretary of State Clinton was killed in the "attack".
  • Then-CA Gov. Arnold Schwarzenegger might very well have appointed Rice to the Senate
  • Then-VA Gov. Tim Kaine prob. wouldn't have appointed Powell
  • Albright, even if she were eligible to the Presidency, couldn't have been appointed to the Senate... she's from D.C.
  • Gov. Schwarzenegger prob. wouldn't have appointed (the then-living) Warren Christopher
  • Then-WI Gov. Jim Doyle prob. wouldn't have appointed (the then-living) Lawrence Eagleburger
  • Then-TX Gov. Rick Perry might very well have appointed Baker
  • Gov. Schwarzenegger might very well have appointed Shultz
  • Then-CT Gov. Jodi Rell might very well have appointed (the then-living) Al Haig
  • Kissinger, even if he were eligible to the Presidency, couldn't have been appointed to the Senate... he's also from D.C.

So former Secretaries Rice, Baker, Shultz, & Haig could've all been appointed to the Senate... seems to me that Rice would be the likely Acting President in this scenario lol
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« Reply #49 on: January 27, 2017, 10:36:54 am »
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In the scenario presented in the report, the governors did appoint enough senators to form a quorum, and they named a former Secretary of State to serve as Senate President Pro Tem. Governors Baker, Cuomo, McAuliffe, or Brown are unlikely to appoint Kerry, Clinton, Powell, or Rice. Kissinger and Albright are ineligible to be acting president. Schultz is to old. That is why James Baker is the apparent choice.

  • The scenario was presented in June 2009, so then-incumbent Secretary of State Clinton was killed in the "attack".
  • Then-CA Gov. Arnold Schwarzenegger might very well have appointed Rice to the Senate
  • Then-VA Gov. Tim Kaine prob. wouldn't have appointed Powell
  • Albright, even if she were eligible to the Presidency, couldn't have been appointed to the Senate... she's from D.C.
  • Gov. Schwarzenegger prob. wouldn't have appointed (the then-living) Warren Christopher
  • Then-WI Gov. Jim Doyle prob. wouldn't have appointed (the then-living) Lawrence Eagleburger
  • Then-TX Gov. Rick Perry might very well have appointed Baker
  • Gov. Schwarzenegger might very well have appointed Shultz
  • Then-CT Gov. Jodi Rell might very well have appointed (the then-living) Al Haig
  • Kissinger, even if he were eligible to the Presidency, couldn't have been appointed to the Senate... he's also from D.C.

So former Secretaries Rice, Baker, Shultz, & Haig could've all been appointed to the Senate... seems to me that Rice would be the likely Acting President in this scenario lol
The scenario had a female Vice President dying, so it was probably Sarah Palin.

The governor of Wisconsin can not appoint senators (the other such states are ND, OK, OR, and RI).
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