CONSTITUTIONAL ACCIDENTS WAITING TO HAPPEN - AGAIN:
How We Can Address Tragedies Such As Political Assassinations And Electoral Terrorism

By AKHIL REED AMAR AND VIKRAM DAVID AMAR
Friday, Sep. 06, 2002

September presents haunting reminders that bad things sometimes happen to good people and a great nation. One hundred and one years ago today, William McKinley was shot by a politically motivated assassin. McKinley died several days later, on September 14, 1901. In mid September, 1881, President James Garfield also died from gunshot wounds inflicted by a politically motivated assassin. (For details, see our July 26 column.) And then of course there is the date that will live in infamy, September 11, 2001.

America cannot always prevent tragedy, but America often can, with relative ease, minimize the constitutional damage resulting from political assassins and the like. Yet the country's current legal framework is notably flawed - a series of constitutional accidents waiting to happen, and in some cases waiting to happen again.

In today's Memorial column, we shall briefly catalogue some of the problems that can occur, and some simple nonpartisan solutions that lawmakers should adopt now - before tragedy strikes again. In future columns, we will offer more details; today we paint the big picture of continued constitutional unpreparedness.

A Problematic Scenario: Presidential Death After Vice Presidential Disability

The Twenty-fifth Amendment, adopted after JFK's assassination, provides a detailed framework for determining whether the President is so severely disabled as to justify allowing someone else to act as President for the duration of the disability. But the Amendment says nothing about possible Vice Presidential disability; and federal statutes are likewise silent on the topic.

Suppose, for example, that the Vice President is in a coma, whether from natural causes or because of some attempted assassination. Current law offers no framework for determining that the Vice President is disabled and therefore unfit for the job until he recovers; and in the absence of such a framework he formally retains all the powers and duties of his office. Nor does current law allow someone other than the Vice President or President to initiate determinations of Presidential disability.

These legal gaps yield several scenarios of needless vulnerability. First, there is the problem of Vice Presidential Disability/ Presidential Death. If the Vice President is not fit to take over, but there is no proper legal mechanism for making this determination while he is Vice President, then what happens if the President dies - whether because of some assassination or political terrorism, or from natural causes? The comatose Vice President would now become the comatose President.

Even worse, in this scenario there is no statutory or constitutional framework in place to determine his unfitness as President! Unless a President voluntarily steps aside (which is unlikely if he is comatose), the only constitutional or statutory mechanism now in place to establish that a President is disabled is triggered by the Vice President. But in the Vice Presidential Disability/ Presidential Death Scenario, there is no longer any Vice President in office.

Another Problematic Scenario: Both the President and Vice President Are Disabled

Similar problems arise under a Vice Presidential Disability/Presidential Disability scenario. Imagine that the Vice President is comatose, and the President does not die, but himself becomes severely disabled-whether from some terrorist incident or from natural causes.

Here too, the problem is that current law requires that (unless the President himself voluntarily steps aside) the Vice President initiate the machinery for determining Presidential disability. Thus, if the Vice President is himself disabled, the machinery simply freezes up, and there is no clearly established legal framework for determining presidential disability.

Consider also a related scenario involving a Disabled Acting President, in which a President becomes disabled first, and a fit Vice President steps up to assume the role of Acting President. If that Acting President later becomes disabled or arguably disabled, who could trigger the process of making the disability determination?

A Further Problem: Variations on the Vice Presidential Vacancy

Now consider two Vice Presidential Vacancy scenarios: Either the Vice President has died, and has not yet been replaced - or the President has died, and the former Vice President has become President but not yet installed his new Vice President.

In these scenarios, there is once again no Vice President in place to trigger the disability-determination process in the event the President suffers some serious physical or mental setback.

How a New Succession Statute Could Help

Although the Twenty-fifth Amendment nowhere addresses these scenarios, neither does it preclude a congressional statute that would solve these problems. Indeed, other language in the Constitution - in Article II - invites Congress "by law" to provide for cases of Presidential and Vice Presidential death and disability.

Further Problems with the Current Succession Statute

In the event both President and Vice President have died or become disabled, Article II gives Congress power to decide by law "what Officer" should act as President. At least two questions arise: Who should be that officer? And, in the event of double death, how long should that officer serve?

The presidential succession statute currently in place, enacted in 1947, answers these two questions, but gets both answers wrong, and indeed gives a plainly unconstitutional answer to the first question - the "who" question.

According to the Act, in the event of a double death, the Speaker of the House becomes President. The line of succession continues with the President pro tem. of the Senate, and then members of the Cabinet, beginning with the Secretary of State. The Act also specifies that the successor President serves out the remainder of the deceased President's term.

But as James Madison argued in 1792, congressional legislators are not "officers" of the United States, as the Constitution uses the word. In the Constitution, "officers" generally means executive and judicial officials, not legislators. (Otherwise the Article I rule that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office" would be incoherent.)

In particular, the Article II statutory succession clause envisioned that a Cabinet Secretary handpicked by the President himself would substitute in the sad event of double death or double disability. This rule of Cabinet succession (which was in place for sixty years before Congress changed the law in 1947) helps maximize the policy continuity between the President that Americans voted for on election day, and the statutory successor who ends up taking his place.

In sum, Article II empowers Congress to choose which Cabinet position is next in line, but it does not empower Congress to choose one of its own members instead.

Thus, if the American people voted for a Republican Presidential ticket, they should not end up with a Democratic statutory successor President; and vice versa. (We first criticized the 1947 law in 1995 when the Democrats controlled the Presidency and Republican Newt Gingrich stood next in line as Speaker of the House. But we feel the same way about the issue today, when the White House is controlled by the Republicans and when Democrat Richard Gephardt would be Speaker of the House if the Democrats win a few more seats in the upcoming off-year election.)

Because no Cabinet secretary enjoys a personal mandate from a national electorate - nor do Congressional leaders picked within individual states and districts - the Cabinet successor who takes over in the event of double death should serve only as long as is necessary to arrange a special off-year presidential election, to choose someone to finish the term. That way, the nation spends as little time as possible with a president lacking a personal national electoral mandate. (Our 1995 article provides more details.)

If personal mandates from the American people are important, isn't there something odd about America's current system of choosing Vice Presidents? After all, voters often pay little attention to the bottom of the ticket. At times, America has elected Vice Presidents who, according to exit polls, could never have won the Vice Presidency (to say nothing of the Presidency) head to head against their leading opponent.

If people vote for a Presidential ticket despite the Vice Presidential candidate, then what would that Vice President's mandate be were he to become President, after a terrorist incident or otherwise? Why should the American people be led by a President who never did, and perhaps never could, win the support of the national people? (Remember Dan Quayle?)

One way to strengthen the Vice President's personal mandate would be to allow voters to vote separately for President and Vice President, just as many states allow separate votes for Governors and Lieutenant Governors.

Nothing in the Constitution prevents states from giving voters this option - but it does raise several complexities. More on all this in later columns. (For a sneak preview, click here for our thoughts on the issue in 1992, prompted by the Quayle Vice Presidency. )

Pre-Inaugural Death: A Problem in Need of A Solution

Suppose a President-elect were to die between Election Day and Inauguration Day. Shouldn't the Vice President-elect automatically become President on Inauguration Day?

If the death occurs after Congress has counted the Electoral College votes, this is precisely what would happen under the Twentieth Amendment. But suppose the death occurs - whether naturally or because of terrorism - hours before the meeting of the electoral college?

Too unlikely ever to actually happen? Not at all. Consider that in 1872, presidential candidate Horace Greeley died after the election but before the electoral college met. Some electors nevertheless voted for Greeley, and Congress refused to count these electoral votes. Nothing much turned on that decision - Greeley had lost to Ulysses Grant, anyway.

But now suppose the candidate who won the November election died right before the electoral college met, and that some of the electoral college nevertheless voted for him - perhaps because college members had pledged to do so, or because state law purported to bind them, or because they had little time to process the tragedy and consider their other options. If Congress applied the Greeley precedent, then all these electoral votes would be tossed aside, and the candidate who lost the election might well become the President.

Election Eve/Election Day Tragedies

But what if the death occurred shortly before Election Day?

Again, this is no abstract hypothetical. In America's last general election, the Democratic U. S. Senate candidate from Missouri, Mel Carnahan, died in a plane crash in late October, just weeks before the voters went to the polls.

The 1968 assassination of Presidential candidate Robert F. Kennedy reminds us that terrorism compounds the risks run by candidates. (Indeed, future historians may well look back at RFK's assassination as an eerie precursor to more recent acts of terror in the heartland; Kennedy was felled by a gunman from the Middle East, apparently because of the candidate's commitment to Israel.)

What if Kennedy had been assassinated not hours after the California primary in June, 1968, but hours before the general election in November, 1968? In the wake of massive grief and confusion, what kind of election would this have been, with millions of voters unsure whether their votes for a dead candidate would even count, or how?

One solution (also floated in 1994-for details, click here) would allow for an election to be postponed in certain disastrous circumstances. For example, Congress could provide that if a major party Presidential candidate were to die or become incapacitated (as certified by, say, the Chief Justice of the United States) shortly before election day, the Presidential election should be postponed - a few weeks should suffice - in order to allow the system to regroup and field a new ticket, and to allow the states to re-print ballots.

If election postponement might make sense in the case of the death of a candidate, it might likewise make sense in other types of national emergency or mass terrorism. Recall that September 11, 2001 was a scheduled election day in New York, the day the parties were supposed to elect their mayoral candidates. But when tragedy struck, the primary was postponed, as state law allowed it to be.

If, God forbid, a similar event were to happen on or near a national Election Day - timed, perhaps, in an attempt to undermine the functioning of American democracy - there ought to be a similar mechanism for postponing the election until the nation gets back on its feet. But current federal law does not provide for such a mechanism.

Now is the Time for Democratic Deliberation


Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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