WASHINGTON – The Constitution fails to protect adequately the office of the presidency in case of catastrophic attack and without changes to existing law, the death of the president and vice president could result in a leadership crisis, say experts looking at possible changes to the presidential line of succession.
Next month, the Continuity of Government Commission (search), a joint effort by the Brookings Institution and the American Enterprise Institute, is holding a hearing to air views about reforms that may be needed in the event of a terror attack or other crisis.
After Sept. 11, the group, which counts former presidents Jimmy Carter and Gerald Ford as its honorary co-chairs, began considering what might happen if Washington were to suffer a massive terrorist attack that not only killed thousands but also crippled the government.
“Everyone in the line of succession lives and works in Washington,” said John C. Fortier, executive director of the commission. “It is conceivable that everyone would be killed and there could be a parade of undersecretaries, generals, governors, and others claiming to be in charge. The situation we don’t want is chaos and strife. We want clarity and legitimacy.”
But not everyone sees the need for significant changes to the law.
"I think discussion is probably a good idea but I don’t think we need to move quickly to amend the Constitution," said Heritage Foundation (search) fellow Lee Edwards, an expert on the presidency.
"I think it really is improbable where you would have a situation where everyone would be wiped out at the same time … but I think it would be useful to talk it out," he said.
While Congress is not expected to move quickly on changing the rules for presidential succession, they are listening to suggestions.
Already, a joint Senate panel held a hearing this month to go over possible scenarios and the dangers inherent in the current system. One proponent of change said action should be taken sooner than later.
“This situation is dangerous and intolerable. We must have a system in place, so that it is always clear and beyond all doubt who the president is, especially in times of national crisis. Yet our current succession law badly fails that standard,” said Sen. John Cornyn, R-Texas, who attended the Senate Judiciary and Senate Rules and Administration Committee hearing.
Currently, if the office of the presidency and vice presidency is vacated, the pecking order would be to turn to the speaker of the House, the president pro tempore of the Senate, then Cabinet officers beginning with the secretary of state, secretary of the treasury, secretary of defense and attorney general.
Fortier has proposed that Congress create several offices outside of Washington with regional security advisers who could have some responsibility for regional coordination of homeland security. Because the Constitution provides that Congress may determine by legislation “what officer shall then act as president,” these advisers could be designated as successors in the presidential line.
Some presidential scholars also warn that the current line of succession defies the intent of the framers of the Constitution since the framers meant that the "officers" should be members of the executive branch. With congressional leaders in the line of succession, Cabinet members could have a legitimate gripe over who is in charge should the top two offices become vacant.
Another problem that arises from having legislative leaders in the line of succession is the concern that the presidency could be turned over to a member of another party, say experts.
“Can you imagine if Speaker Gingrich had been catapulted to the presidency during Bill Clinton’s term? Or if Speaker Tom Foley or Senator Byrd had ascended during the Presidency of George H.W. Bush? There surely would have been governmental chaos,” Sen. Trent Lott, R-Miss., said at the joint hearing.
“A change in party affiliation of the president in mid-term would cause great controversy. The party ousted from the White House would cry foul, and would see this as political manipulation, reversing the popular choice of the previous general election. This is a circumstance to be avoided if at all possible,” said Larry Sabato, director of the University of Virginia’s Center for Politics (search).
An additional worry about having legislative leaders in the line of succession is that they are also empowered with the ability to remove the president and vice president from office.
Thirty years ago, that scenario dominated American politics. With Vice President Spiro Agnew having resigned and President Richard Nixon on his way out, concerns rose that Democratic Speaker of the House Carl Albert would hold up the confirmation of Gerald Ford to the vice presidency.
If he had done that, Albert would have become president. Although that potential crisis was avoided, some observers point to it as an example of the risks of maintaining the current system.