Why Strict Cabinet Succession is Always Bad Policy: A Response to Jack Goldsmith and Ben Miller-Gootnick

Abstract

In their Lawfare post, Jack Goldsmith and Ben Miller-Gootnick put forward the traditional argument that legislative officer succession, as permitted by the Presidential Succession Act of 1947, leads to undesirable and destabilizing changes in party control. Quoting a report of the Continuity in Government Commission, Goldsmith and Miller-Gootnick wrote: [A] “political zealot might seek to change the party in the executive branch with a single attack,” or a “freak accident might lead to a sudden change in party” that controlled the presidency. [The report] added that “if a Congressional leader not from the President’s party were to assume the presidency, it could lead to a destabilizing change of party for the federal government.” As a result of these factors, the commission recommended (among other things) removing congressional leaders from the statutory line of succession. This is the long-standing policy objection which is put forward against both the 1947 Act and its 1792 predecessor. My limited goal here is to illustrate why that policy objection is wrong; in fact, it is dangerously misguided. I offer this as a compromise and partial solution: keep legislative officer succession—but append it to the end of the line of succession, following cabinet succession. Furthermore, cabinet members should only succeed and be allowed to retain the presidency during the term of the President which appointed them. I suggest that would capture the best of both succession regimes: cabinet officer succession and legislative officer succession. I am not the first person to suggest a solution along these lines. In 2004, in testimony before a House of Representatives committee, Professor Akhil Amar, who is the nation’s most prominent academic opponent of legislative officer succession, stated: I do think in very, very highly unusual situations where you really try to have Cabinet succession, officer succession, and everyone’s gone, I think only a real constitutional zealot, maybe without good judgment, would say you can’t have congressional leaders in that circumstance because the Constitution really isn’t a suicide pact, and so I think I appreciate sort of the prudence involved there. I agree with Professor Amar. The only difference between Professor Amar’s position and my own is what he characterizes as “highly unusual situations” is, in my view, the world that we live in. That is the world which should animate our policy-makers. And that has been our world since Hiroshima, 9/11, and COVID-19.