Jack Balkin argues that the current Congress should amend the Presidential Succession Act to allow succession to remain within a political party. So instead of the VP-then-Speaker of the House sequence, Balkin argues that the Presidency should devolve from the VP to executive officials to keep the succession within the political party that captured the presidential office in the last election.
Put to one side the constitutionality of the Act or any attempt to modify it. Should the “great act of statesmanship” of changing succession rules to stay within the ruling party (as Norm Ornstein calls it) really become a legislative priority? I can’t see the pressing need — at least from the perspective of making sure party control is preserved. (Ornstein also worries about terrorism and how large numbers of potential successors could die in an attack on Washington, requiring succession rules that put non-Washingtonians in the queue.) As we all know, presidents often win their offices without the popular vote; it would hardly be a great injustice to devolve the presidency to the political party that actually won the popular vote in the last election, assuming that both the President and VP were removed from office. So it isn’t clear to me why there should be a presumption of a party’s preserving its hold on the executive office without some further test of that party’s democratic credibility. Even assuming that a party won the popular vote in a presidential election a few years back, it is possible, of course, that an intervening mid-term election evidences popular support for the party not controlling the White House. Why should our succession rules allow the party losing popular support to maintain its hold on the office? In short, if Congress were to take to the task of rewriting the succession laws, I hardly think an easy case can be made for simply allowing the winning party in the last Electoral College vote to hold onto the executive office. We don’t have this much faith in the Electoral College, do we? If we’re going to rewrite this law, let’s be more creative — and more sensitive to democratic norms that too often get subverted by our structural rules.
Posted by Ethan Leib on March 3, 2007 at 12:34 PM