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Author Topic: order of succession loophole?  (Read 14583 times)
Mr. Morden
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« on: November 10, 2008, 04:15:32 am »
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What is the timing of new Cabinet members being sworn in, relative to when the new president and VP are sworn in on Jan. 20th?  I know that the president elect traditionally names cabinet appointees even before he takes office, and confirmation hearings are held by the new Congress in January, even before he's been sworn in, but when are those new Cabinet officials typically sworn in to their new jobs?  Does it have to take place some time later in the day on the 20th (or in the following weeks), *after* the new president and VP have been sworn in?

If so, what about the following scenario?: Obama names, say, Richard Holbrooke to be Secretary of State, and there are confirmation hearings held, and Holbrooke is scheduled to be sworn in as SoS on Jan. 21st, the day after Obama and Biden.  What if there's a mass assassination on the 20th, after Obama and Biden take the oath of office, where Obama, Biden, Pelosi, and Byrd are all killed.  The next person in the line of succession is the Secretary of State, who would still be Condi Rice at that point.  Rice would presumably be sworn in as president.  Would she be legally permitted to serve the entire four years of Obama's term as president, if she wanted to?

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« Reply #1 on: November 10, 2008, 02:06:21 pm »
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Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?
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« Reply #2 on: November 10, 2008, 02:30:27 pm »
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Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?

Yes, it does.
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« Reply #3 on: November 10, 2008, 04:10:59 pm »
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Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?

Yes, it does.

Really?  OK, I didn't realize that.  I thought the outgoing Cabinet officials were still in office until their replacements were sworn in.

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« Reply #4 on: November 11, 2008, 08:44:52 pm »
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Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?

Yes, it does.

She doesn't have a term of office as such.

They may have someone stay away from the ceremony, a "designated survivor."
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« Reply #5 on: November 14, 2008, 04:37:48 pm »
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Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?

Yes, it does.

She doesn't have a term of office as such.

They may have someone stay away from the ceremony, a "designated survivor."

OK, but who is even in the line of succession, who could serve as a designated survivor, in the moments after the new president and VP are sworn in?  If the president has *just* been sworn in minutes ago, there hasn't been time to swear in the new Cabinet yet.  So is the entire Cabinet vacant, or are the old Cabinet members from the outgoing administration still in office until their replacements are sworn in?

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« Reply #6 on: November 14, 2008, 05:10:48 pm »
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Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?

Yes, it does.

She doesn't have a term of office as such.

They may have someone stay away from the ceremony, a "designated survivor."

OK, but who is even in the line of succession, who could serve as a designated survivor, in the moments after the new president and VP are sworn in?  If the president has *just* been sworn in minutes ago, there hasn't been time to swear in the new Cabinet yet.  So is the entire Cabinet vacant, or are the old Cabinet members from the outgoing administration still in office until their replacements are sworn in?



The Speaker and President Pro Tem.  In theory, a single surviving Representative could elect a Speaker.
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« Reply #7 on: November 14, 2008, 10:10:53 pm »
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Here is the list of order of succession, according to the Order of Succession Act:

    1. The Vice President
    2. Speaker of the House
    3. President pro tempore of the Senate
    4. Secretary of State
    5. Secretary of the Treasury
    6. Secretary of Defense
    7. Attorney General
    8. Secretary of the Interior
    9. Secretary of Agriculture
    10. Secretary of Commerce
    11. Secretary of Labor
    12. Secretary of Health and Human Services
    13. Secretary of Housing and Urban Development
    14. Secretary of Transportation
    15. Secretary of Energy
    16. Secretary of Education
    17. Secretary of Veterans Affairs

I suppose you could argue about whether those cabinet positions are filled by X or Y at the moment immediately preceding the swearing ceremony, but I think the spirit of the law (if not the letter of the law), is that the incoming bureaucrats are those delineated in the bill.

Whether or not Barack's hand has yet touched a bible shouldn't matter, I'd think.  After all, here's the presidential oath:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

And here's the senatorial oath, which he has already made:

"I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."


As a practical matter, I'd say this thread is rather like you trying to sell me the hatchet that George Washington used to cut down his father's cherry tree, but that the handle was burned in a fire and had to be replaced, and then later the blade was damaged and had to be replaced, but the hatchet you are selling still occupies the same space, intrinsically, so it's still The Hatchet.

Especially since the urban legend of Washington chopping down that tree has no basis in reality.

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« Reply #8 on: November 15, 2008, 02:23:00 am »
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I suppose you could argue about whether those cabinet positions are filled by X or Y at the moment immediately preceding the swearing ceremony, but I think the spirit of the law (if not the letter of the law), is that the incoming bureaucrats are those delineated in the bill.

Whether or not Barack's hand has yet touched a bible shouldn't matter, I'd think.

I'm not sure if you quite understand my question.  I'm not talking about something happening before *Obama* is sworn in.  I'm talking about something happening after he's been sworn in, but before his *Cabinet* has been sworn in.  I'm asking about who is legally the Secretary of State or the Secretary of the Treasury immediately after the new president is sworn in.

Heck, let's make this hypothetical easier, so it's easier to see my point.  Let's suppose that Obama hasn't even named a new secretary of state *nominee* by the time of his inauguration.  This happened, or came close to happening with Clinton and the attorney general position, because there turned out to be ethics questions with Clinton's initial choices.  Reno wasn't confirmed until several weeks into the new administration if memory serves.

Let's suppose the same thing happens with Obama and the secretary of state position.  Obama and Biden are sworn in on Jan. 20th, and Obama hasn't appointed anyone to be the new secretary of state yet.  Terrorists bomb the inauguration ceremony, and, *after* Obama and Biden have taken the oath, the bomb goes off, and Obama, Biden, Pelosi, and Byrd are all killed.  Normally, the Secretary of State would be sworn in as the new president.  But, since Obama has just taken the oath as president, and hasn't named anyone to be secretary of state, who is the secretary of state?  Is it still Rice, at that moment, since no one has been named to replace her yet?  Or is the secretary of state position considered vacant at that time, and so the order of succession would skip past the SoS position?

And if Rice still counts as the SoS, and can take over as president, could she legally remain president through the entirety of Obama's term?  That's what I'm asking.

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« Reply #9 on: November 15, 2008, 02:55:26 am »
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And if Rice still counts as the SoS, and can take over as president, could she legally remain president through the entirety of Obama's term?  That's what I'm asking.



If Rice is still the SoS, yes.  I'm not sure if she would be.  She doesn't have a term of office, per se.
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« Reply #10 on: November 16, 2008, 04:31:42 pm »
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And if Rice still counts as the SoS, and can take over as president, could she legally remain president through the entirety of Obama's term?  That's what I'm asking.



If Rice is still the SoS, yes.  I'm not sure if she would be.  She doesn't have a term of office, per se.

Ah, so Obama and his VP are killed and haven't named a cabinet.  Weird circumstance.  I suppose if he hadn't even named anyone for SOS, and the Speaker of the House was killed as well, then Condi would probably have to be sworn in.  I still doubt she'd serve four years.  For one thing, I'd imagine that the surviving house members, at least the majority caucus, would come up with a new speaker pretty quickly in such a circumstance.  Especially given the current majority caucus and its general antipathy for neoconservatives such as Rice. 

Sounds like a lawyer question.  There was at least one constitutional attorney who used to post here.  Markdel.  I haven't seen him around in a very long time, though.
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« Reply #11 on: November 16, 2008, 04:44:58 pm »
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Just to throw a wrench in the clockwork, what if all predecessor's cabinet members were either born in foreign countries, or had not yet reached their 35 birthdays or hadn't lived in the country for at least 14 years, or something like that, so that none was constitutionally eligible? 

That's a fun question too.  At what point does the line of succession go down to you?  Or me?

According to the the government's Common Documents site, "If a statutory successor is serving as acting President, Congress may, but is not required to, call a new presidential election."

My bet is that Condi would last about a millisecond as president with this congress.
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« Reply #12 on: November 16, 2008, 06:39:47 pm »
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Just to throw a wrench in the clockwork, what if all predecessor's cabinet members were either born in foreign countries, or had not yet reached their 35 birthdays or hadn't lived in the country for at least 14 years, or something like that, so that none was constitutionally eligible? 

That's a fun question too.  At what point does the line of succession go down to you?  Or me?

According to the the government's Common Documents site, "If a statutory successor is serving as acting President, Congress may, but is not required to, call a new presidential election."

My bet is that Condi would last about a millisecond as president with this congress.

Unfortunately, succession ends at the cabinet.

Now, the kicker is, both the House and Senate can elect someone to serve as presiding officer, even if not a member of the body; indeed several nonmembers received votes for House Speakers in 1997.  My guess would be that they would quickly elect someone established, Al Gore, for example, who would then become President.
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« Reply #13 on: November 16, 2008, 08:28:25 pm »
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And if Rice still counts as the SoS, and can take over as president, could she legally remain president through the entirety of Obama's term?  That's what I'm asking.



If Rice is still the SoS, yes.  I'm not sure if she would be.  She doesn't have a term of office, per se.

Ah, so Obama and his VP are killed and haven't named a cabinet.  Weird circumstance.  I suppose if he hadn't even named anyone for SOS, and the Speaker of the House was killed as well, then Condi would probably have to be sworn in.  I still doubt she'd serve four years.  For one thing, I'd imagine that the surviving house members, at least the majority caucus, would come up with a new speaker pretty quickly in such a circumstance.  Especially given the current majority caucus and its general antipathy for neoconservatives such as Rice.

I was under the impression that if the president, VP, House speaker, and pres. pro temp are all killed, then the Secretary of State is sworn in as president, and she can continue serving as president until the current presidential term is up, regardless of whether a new House Speaker is named.  So, for example, if today, Bush, Cheney, Pelosi, and Byrd were to all die, Rice would immediately be sworn in as the new president.  She would serve as president right up until Bush's term ends on Jan. 20th.  It doesn't matter if, in the interim, the House elects Steny Hoyer as Speaker.  Hoyer would *not* replace Rice as president, because Rice has already taken the oath of office as president, and would remain president until Bush's term ends on Jan. 20th.

That's what makes the scenario where the new president hasn't picked a new SoS yet interesting.  If Obama and Biden take the oath of office on Jan. 20th, and Obama hasn't picked a new SoS yet, when Obama, Biden, Pelosi, and Byrd are all killed, then, if we're saying that Rice is still technically SoS at that point, she's sworn in as president, and serves out the entirety of Obama's term.  Of course, there would be an enormous backlash against the GOP taking back the presidency for another four years through an order of succession loophole, and Rice would probably be pressured into resigning, but the question was about whether she could *legally* stay on as president for all four years if she wanted to, not whether she would actually go through with it.

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« Reply #14 on: November 17, 2008, 07:47:13 am »
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Especially since the urban legend of Washington chopping down that tree has no basis in reality.

I was reading that the story of Washington chopping down the cherry tree was invented by a pastor to use as a sermon illustration. Guess what the sermon was on? The virtue of honesty! So to illustrate the virtue of honesty, the pastor makes up a story which he then says is true... the irony of it!
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« Reply #15 on: November 18, 2008, 12:21:25 am »
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That's what makes the scenario where the new president hasn't picked a new SoS yet interesting.  If Obama and Biden take the oath of office on Jan. 20th, and Obama hasn't picked a new SoS yet, when Obama, Biden, Pelosi, and Byrd are all killed, then, if we're saying that Rice is still technically SoS at that point, she's sworn in as president, and serves out the entirety of Obama's term.  Of course, there would be an enormous backlash against the GOP taking back the presidency for another four years through an order of succession loophole, and Rice would probably be pressured into resigning, but the question was about whether she could *legally* stay on as president for all four years if she wanted to, not whether she would actually go through with it.


The question is, is Rice still SoS?  I think that would be the answer.
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« Reply #16 on: November 18, 2008, 04:16:11 am »
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Just to throw a wrench in the clockwork, what if all predecessor's cabinet members were either born in foreign countries, or had not yet reached their 35 birthdays or hadn't lived in the country for at least 14 years, or something like that, so that none was constitutionally eligible? 

That's a fun question too.  At what point does the line of succession go down to you?  Or me?

According to the the government's Common Documents site, "If a statutory successor is serving as acting President, Congress may, but is not required to, call a new presidential election."

My bet is that Condi would last about a millisecond as president with this congress.

That could be a great movie - the lone postal worker is left as the highest-ranked federal employee after the [whatever] attack and is thus forced to lean the recovering United States of America out of the ashes.
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« Reply #17 on: November 18, 2008, 07:58:37 am »
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Just to throw a wrench in the clockwork, what if all predecessor's cabinet members were either born in foreign countries, or had not yet reached their 35 birthdays or hadn't lived in the country for at least 14 years, or something like that, so that none was constitutionally eligible? 

That's a fun question too.  At what point does the line of succession go down to you?  Or me?

According to the the government's Common Documents site, "If a statutory successor is serving as acting President, Congress may, but is not required to, call a new presidential election."

My bet is that Condi would last about a millisecond as president with this congress.

That could be a great movie - the lone postal worker is left as the highest-ranked federal employee after the [whatever] attack and is thus forced to lean the recovering United States of America out of the ashes.

You read much (any) Tom Clancy? He plays on this theme a little in a couple of his books. I won't say which books, or how in case you (or someone else) hasn't read them and might want to, although feel free to PM me.
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« Reply #18 on: November 19, 2008, 04:25:14 pm »
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I believe that the government has a list that extends past 17, or however many spots there are, for several hundred or so.  It may just be seniority in the Senate, then House, although these people have to be elligible to be president.
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« Reply #19 on: November 22, 2008, 01:22:37 am »
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I don't think a non-President may nominate/appoint cabinet officers.  He can make announcements, and the Senate could begin the vetting process.

Back when both congressional and presidential terms began on March 4, the lame duck session would often end on March 3.  When there was a new president, the Senate would hold over for a short (one week) session at the start of the new term and consider presidential appointments (if they hadn't, the new president could have simply made recess appointments).
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« Reply #20 on: December 22, 2008, 09:35:02 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.
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« Reply #21 on: December 24, 2008, 07:01:33 pm »
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I believe that the government has a list that extends past 17, or however many spots there are, for several hundred or so.  It may just be seniority in the Senate, then House, although these people have to be elligible to be president.

I've never seen a list that drops below the cabinet, but there is a practical solution.

So long as one member of the house is left, he can choose a Speaker, who then becomes President.  I think the same thing occurs in the Senate.  At that point, there would be the 17 on the list, plus 434 who would have to die before a vacancy in the office of Speaker could not be filled, plus (probably) 99 in the Senate before a President Pro Tem could be elected.  The only problem I could see is if the House was adjourned and couldn't meet.
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« Reply #22 on: December 28, 2008, 01:08:23 am »
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Sounds like this hasn't been solved at all...

I'll jsut add how I would have thought it goes...not that I know any more here. I thought the cabinet positions were basically permanent until the occupant reigns or until another appointee of the President (possibly a different President) is confirmed by the Senate. I also thought that once President, regardless of how one rose to that position, one is President until the end of the current 4 year term unless re-elected.

Thus, according to my layman's understanding of how things work prior to clicking on this thread, in the scenario put forth Rice (assuming she hadn't already resigned as SoS) would be sworn in as President and would stay President for all of Obama's term unless she resigned.  wI imagine she would resign the Presidency once a new House Speaker had been elected.
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« Reply #23 on: July 11, 2009, 07:56:00 pm »
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Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?

Yes, it does.

She doesn't have a term of office as such.

They may have someone stay away from the ceremony, a "designated survivor."

OK, but who is even in the line of succession, who could serve as a designated survivor, in the moments after the new president and VP are sworn in?  If the president has *just* been sworn in minutes ago, there hasn't been time to swear in the new Cabinet yet.  So is the entire Cabinet vacant, or are the old Cabinet members from the outgoing administration still in office until their replacements are sworn in?



The Speaker and President Pro Tem.  In theory, a single surviving Representative could elect a Speaker.

Oh yes, that's why a Representative is placed as one of the designated survivors

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?
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« Reply #24 on: July 11, 2009, 08:50:44 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.

If the wipeout happens after noon on 20 January 2009, and a Cabinet secretary on the succession list became President due to 3 USC Sec. 19(d), ey would remain President until noon 20 January 2013 despite the election of a Speaker or a President pro tem.

If the wipeout happens before noon on January 20, and a Cabinet secretary on the succession list became President due to 3 USC Sec. 19(d), ey would remain President until noon 20 January 2009.  If before then, Minnick elects himself Speaker, he becomes President on noon 20 January 2009 for a full term.

In any of the above scenarios, if Obama or Biden were merely incapacitated instead of killed and then after noon on 20 January 2009 recovered, they would take office once they were capable, displacing the person who was their placeholder.
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