order of succession loophole?

[angus]

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.

[angus]

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.

[angus]

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.