order of succession loophole?

[Mr. Morden]

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?

[Mr. Morden]

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.

[Mr. Morden]

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?

[Mr. Morden]

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.

[Mr. Morden]

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.

[Mr. Morden]

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?

[Mr. Morden]

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.

[Mr. Morden]

*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)?

[Mr. Morden]

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.