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jurisprudence: The law, lawyers, and the court.
Take Your Paws off the Presidency!
Does the Bush administration have a secret
succession order that bypasses Congress?
Posted Tuesday, July 15, 2008, at 3:35 PM ET
Rise of the Vulcans, Mayer
reports that Reagan "amended the process for speed and clarity …
without informing Congress that it had been sidestepped." We don't know
how. But if the order bypasses the speaker and the Senate president pro
tempore in favor of an official in the executive branch, we have a
recipe for a constitutional crisis.
With al-Qaida back in
business in Pakistan and terrorist incidents proliferating around the
world, this is no time to ignore that grim risk. A coup by the
executive branch would be especially devastating at a time at which
Democrats control the House. In the scenario I'm envisioning, Nancy
Pelosi would assert her claim as acting president under existing
statutes while Secretary of State Condoleezza Rice, or some other
executive official, would simultaneously assert her competing authority
under the executive order.
When confronting these competing claims, it would be the military that would call the shots. As the Washington Post reported three years ago, the Pentagon has "devised its first-ever war plans for
guarding against and responding to terrorist attacks in the United
States, envisioning 15 potential crisis scenarios and anticipating
several simultaneous strikes around the country." In acting on these
plans, would the Joint Chiefs choose to recognize the constitutional
authority of Pelosi as commander in chief? Or would they respond to the
commands of the executive official presiding over the "doomsday" crisis
center at some "undisclosed location"? To ask the question is to answer
it: The whole point of these "doomsday" exercises is to assure instant
obedience to the will of the executive on the other side of the hot
line. We are staring at a clear and present danger to the republic.
Where does the Bush administration figure into all of this? Since Sept. 11 ,
the question of presidential succession has been a preoccupation of
some of the most responsible statesmen in Washington. Most notably,
James Baker joined the late Lloyd Cutler to chair a bipartisan
AEI-Brookings Institution commission on the subject. But their
recommendations went nowhere in Congress, and I have always wondered
why the Bush administration was content to remain on the sidelines.
After all, the administration is certainly serious about terrorism.
Why, then, didn't it take energetic steps to make much-needed revisions
to the law of presidential succession inherited from the days of Harry
Truman?
Despite the administration's repeated acts of
lawlessness, I must confess to a certain naivete. It never occurred to
me that Bush didn't care how Congress responded to the problem because
he had issued a secret executive order that took the law into his own
hands. After all, when he issued a public directive on the matter on continuity in government in 2007, he explicitly
pledged to act "consistent[ly]" with the Presidential Succession Act.
At the same time, however, his directive refers to a secret appendix.
And as Ron Rosenbaum pointed out in Slate, even members of the House Committee on Homeland Security have been denied access to the document.
The
committee, and Congress, should not take "no" for an answer. But they
should also move beyond the appendix and demand to know whether
investigative reports of a secret succession order are well-founded. If
Reagan did issue an illegal order, Congress should publicly determine
how subsequent administrations dealt with it. Perhaps President George
H. W. Bush or Bill Clinton expressly repudiated the order. Or perhaps
they reaffirmed it, thereby laying the foundation for President Bush,
with the encouragement of Vice President Cheney, to do the same—through
a process entirely independent of the administration's formal
directives on the subject.
In any event, it is time for Congress
to find out. Even if Reagan's initial illegal order has been rescinded,
Congress must deprive it of all value as a precedent. Lawmakers should
pass legislation that expressly nullifies all secret orders, present
and future, through which the president asserts the imperial privilege
of naming his own successor. We must decisively repudiate these illegal
moves before they explode in our faces.
https://www.slate.com/id/2195384/
