Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

How to work around the election-inauguration hiatus

By Jack M. Balkin

In the modern world, there is really very little to be said for the 10-week hiatus between election and inauguration of the new president, especially if the newly elected president ran on a platform significantly in opposition to the incumbent. Decisions on foreign and military policy and, as we have seen this past week, even domestic policies, must sometimes be made quickly, and it is essential that the president making them (or trying to persuade others to accept them) have various kinds of authority, including the political authority that comes from popular approval in a just-concluded election. This concern was present in, say, 1968-69, 1980-81, 1992093, and 2000-2001, but not in 1988-89, where George H.W. Bush's election was in no way a repudiation of the Reagan Administration. It will certainly be present after November 4, especially if, as seems now widely to be expected, Obama wins a clear electoral vote (and, presumably, popular vote mandate).

So what can be done, without a constitutional amendment, to cure this particular deficiency in our Constitution? In one sense, it is surprisingly easy: As Norman Ornstein and Thomas Mann point out in their book The Broken Branch, there is no constitutional requirement that the Speaker of the House be a member of the House. So the "putting country first" response to Obama's election (and, under some scenarios, even McCain's election), especially if there is no real doubt about the electoral vote result, is for Nancy Pelosi to "resign" immediately and the House to select the person We the People have chosen as the new President as the new Speaker of the House. Then, putting country first, George W. Bush and Richard Cheney simultaneously submit their resignations, leaving both the presidency and vice presidency vacant. Under the Succession in Office Act, next in line is the Speaker. QED. Speaker of the House Obama (or McCain), who will, of course, have resigned his Senate seat in the interim, will succeed to the presidency immediately and then take the oath for the full four-year term on January 20, as the unamended Constitution provides.

There is one embarrassment in my suggesting this solution, however:

Akhil Reed Amar and Vikram Amar argued in a brilliant Stanford Law Review article several years ago that the Succession in Office Act is unconstitutional, that the successor must be an "officer" of the United States and that members of Congress are not "officers." More serious, I think, is their point that the Speaker and President pro tem of the Senate shouldn't be in the succession because that creates an incentive for an unscrupulous Speaker, particularly of the opposite political party, to mount a campaign to impeach the sitting president, especially if there is no vice president, in order to affect a party coup. I think there is much to this argument. I would strongly prefer that the succession be in the Cabinet, as was the case prior to 1947, when the current SOA was passed. But, to paraphrase Donald Rumsfeld, you work with the SOA in have, not the one you would prefer to have.

Some of you may remember that Sen. Fulbright suggested that Harry Truman name a Republican as Secretary of State and then resign, following the Republican takeover of Congress in 1946, which earned Truman's immortal reference to the Arkansas senator as "Sen. Halfbright." I don't think my suggestion is really the same as Fulbright's, for the obvious reason that a number of factors might explain the takeover of the Congress by the opposite party besides opposition to the president, whereas a presidential election, for all of its own ambiguities, is "crisper" in this regard. Also, we're not talking about a sitting president giving up two years of his term, as Fulbright was, but, rather, the last ten weeks, for the good of the country in order to make sure that there is both a legal and politically legitimate and "authoritative" government in perhaps perilous times. (Obviously, I would also support some mechanism to fire a president in mid-term, but my proposal is entirely independent of accepting any such view.)

Unconstitutional or not, the Succession in Office Act is what we have, and it does supply a solution to the problem of what might be termed the "dead-duck presidency." One might imagine that Bush and Chency would resist the idea, but on what grounds, other than a sheer desire to remain in (legal) power regardless of what would best serve the national interest? (Obviously, one would expect McCain and Obama to promise to honor this "precedent" should they lose in 2012, so that a new "constitutional convention" in the British sense would avoid the need for even a constitutional amendment.)

Full post as published by Balkinization on September 28, 2008 (boomark / email).