order of succession loophole?

[jimrtex]

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).

[jimrtex]

*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.

[jimrtex]

*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.

[jimrtex]

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.

[jimrtex]

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).

[jimrtex]

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.

[jimrtex]

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).

[jimrtex]

"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.

The first office in the list 3 USC 19(d) is <b>Secretary of State</b>. The fundamental purpose of 3 USC 19(d) is to name the officers who may act as President, and their priority.

Tom Shannon is the Undersecretary of State for Political Affairs. He was confirmed in that position by the US Senate.

Secretary of State John Kerry, and the two Deputy Secretaries of State (Tony Blinken and Heather Higginbottom) submitted their resignations which were accepted by President Trump.

5 USC § 3345 provides that if the [head of department] "dies, resigns, or is otherwise unable to perform the functions and duties of the office", that the President may designate "a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity"

EO 13251 is the implementation of 5 USC § 3345.

Perhaps it depends on what your meaning of "is" is.

You believe that Tom Shannon is the Secretary of State.

I believe that Tom Shannon is the Undersecretary of State for Political Affairs who is performing  the functions and duties of the Secretary of State temporarily in an acting capacity, and that further it is not among the duties of the Secretary of State to act as Acting President under certain circumstances, but rather that the person who is Secretary  of State, if there is such a person, to become Acting President under certain circumstances.