Is the Presidential Succession Law Constitutional?

Abstract

Since the November 1994 election, Speaker Newt Gingrich has sparked controversy with remarks on a broad range of political and social issues. But one thing that he has said over and over-that he, as Speaker of the House of Representatives, is second in the succession line for the Presidency-has been accepted matter-of-factly by admirer and detractor alike. On the surface, Gingrich's claim that he is two heartbeats away from the Oval Office is completely consistent with current law. The federal succession statute clearly assigns the powers and duties of the Presidency to the Speaker of the House "[i]f, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President." But serious questions lurk at a deeper level-questions about the constitutionality of the succession statute itself. In this essay, we conclude that the best reading of the Constitution's text, history, and structure excludes federal legislators from the line of presidential succession. Our most important reasoning is structural: If legislators are in line to fill a vacant Oval Office, a pervasive conflict of interest will warp their judicial roles in presidential and vice-presidential impeachment proceedings; and similar pressures will tempt lawmakers to betray our Constitution's careful rejection of a Parliamentary/Prime Minister Model of presidential selection.