What to Do If Simultaneous Presidential and Vice Presidential Inability Struck \u3ci\u3eToday\u3c/i\u3e

Dual incapacity is one of three major inability scenarios involving the Vice President that threatens the continuity of the executive branch. The current state of the law in this area, unfortunately, leaves only imperfect options for policymakers. This Article proposes that, in the event of a dual inability, the Speaker, the President pro tempore of the Senate, and the Cabinet should meet and then jointly declare that the Speaker is Acting President until either the President or Vice President regains capacity. At the same time, the Speaker—as the new Acting President—the President pro tempore, and the Cabinet should request that Congress ratify their decision and the process they undertook to reach that determination

Vice Presidential Secrecy: A Study in Comparative Constitutional Privilege and Historical Development

(Excerpt) Ultimately, this Article concludes that, while Vice Presidents have become embroiled in ever more frequent contests over information, VPP has not been officially invoked. Nonetheless, episodes involving Vice Presidents Humphrey, Agnew, Rockefeller, and Cheney all to varying degrees seem to have implicitly recognized that such a privilege exists; in this vein, they would appear to have “reserved the right” for future Vice Presidents to make such an assertion. At a broader level, the growing frequency of these clashes over the past several decades demonstrates the growing significance of the vice presidency over time and the position’s greater involvement in the executive branch. Should this overall trend toward enhanced vice presidential power continue, it is quite possible that Vice Presidents could build on these proto-VPP precedents and actually invoke the doctrine. Next, the Article will turn to evaluating potential arguments in favor of VPP and possible counterarguments against it. It will analyze constitutional structure as well as case law and past practice. While case law and past practice generally support VPP, theoretical arguments based on structural considerations are even more compelling, especially in light of other constitutional officers having comparable constitutional privileges. After the pros and cons of VPP have been weighed, this Article concludes that the arguments in favor of a privilege of limited scope are more persuasive than those against recognition of such a power. The doctrine, however, is likely to exist only to the extent it involves the Vice President’s narrow textual responsibilities: presiding over the Senate and breaking tie votes; preparing for and helping to make determinations about presidential inability; and preparing for succession. As such, VPP is a composite privilege reflecting both the Vice President’s Article I duties and his responsibilities under the Twenty-Fifth Amendment. For the Vice President to invoke a constitutional privilege beyond these narrow confines runs the risk of creating a vice presidential executive privilege, which would undermine the President’s constitutional role as the head of the executive branch and the prevailing view that only the President may invoke executive privilege

When the Chief Justice Serves in the Legislative Branch

This article argues that the Chief Justice is considered part of the legislative branch during presidential impeachment trials. In so arguing, this article first argues, as a matter of constitutional text, that the Chief Justice during presidential impeachment trials steps into the shoes of the president of the Senate. The Chief Justice’s authority in this vein is granted by Article I, which predominantly governs the legislative branch, and not Article III, which does the same for the federal judiciary. Indeed, the only reference to the Chief Justice in the entirety of the Constitution occurs in this context in Article I. In his role as presiding officer, the Chief Justice has power only under this article to fall back on. The Chief Justice carries with him no residual Article III authority; he exercises no power of judicial review. Second, the Chief Justice is part of the legislative branch during presidential impeachment powers because impeachment is not listed among the aspects of judicial branch power under Article III. Quite simply, as a matter of text, the judicial branch – as opposed to the Chief Justice in a legislative branch capacity – is in no way part of the impeachment process. A third textual provision reaffirms this view, Article I grants the Senate “the sole Power to try all impeachments,” which poses a major obstacle to the view that the Chief Justice is always in the judicial branch. How could the Chief Justice – as presiding officer of the Senate during presidential impeachment trials – not be considered part of the Senate given the upper chamber’s exclusive authority to try all impeachments? To view him otherwise is to contradict the constitutional mandate that the Senate alone carries out this duty. Fourth, a broader structural feature is also at play that further reinforces the view that the Chief Justice is part of the legislative branch during presidential impeachment trials. It has long been established that the judicial branch may not have its final determinations appealed to the other branches. The Supreme Court held that “invalidation of final [judicial] judgements [is] . . . categorically unconstitutional.” Yet, as presiding officer of the Senate, any rulings by the Chief Justice may be (and indeed have been) overridden by the Senate. Fifth, these textual and structural factors are enhanced by custom and practical considerations. For example, the Chief Justice like the Vice President in more commonplace settings can vote to break ties during presidential impeachment trials. In the Johnson impeachment proceedings, Chief Justice Chase twice voted to resolve a Senate impasse. The initial vote was challenged but ultimately upheld by the chamber. Moreover, the Chief Justice like the Vice President and President Pro Tempore can make a variety of parliamentary rulings subject to possible Senate override. In this context, the Chief Justice may even be referred to by senators as “Mr. President,” again clearly denoting his legislative branch role and his status as a fill-in for the president of the Senate. As such, the Chief Justice is not resolving cases and controversies under Article III; he is participating in the internal business of the Senate under Article I

The Presidential Succession Act at 75 | How Close Has the United States Come to Having Lawmakers Succeed to the Presidency?

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed whether reform to the statute is needed. In these remarks, Roy E. Brownell II, a Washington, D.C., Attorney and Member of the Continuity of Government Commission, discusses some historical examples that demonstrate how close the nation has come to actually having to implement legislative succession to the presidency

Presidential Succession Act of 1947 Bibliography

Bibliography with primary and secondary sources related to the Presidential Succession Act of 1947.https://ir.lawnet.fordham.edu/twentyfifth_amendment_miscellaneous/1003/thumbnail.jp

An Anniversary Best Uncelebrated: The 75th Year of the Presidential Succession Act of 1947

On July 18, 1947, President Harry Truman signed the Presidential Succession Act into law. The 1947 Act placed the Speaker of the House and the Senate president pro tempore in the presidential line of succession. Seventy-five years later, the statute needs major revision. Although the 1947 Act has not been used, the nation’s good fortune may change at any moment, especially given ever-present threats to the health and safety of the president and vice president. This Article argues that Congress should revise the 1947 law in several ways, most notably by making Cabinet secretaries, in most circumstances, the immediate successors to the presidency after the vice president

The Presidential Succession Act at 75 | How Close Has the United States Come to Having Lawmakers Succeed to the Presidency?

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed whether reform to the statute is needed. In these remarks, Roy E. Brownell II, a Washington, D.C., Attorney and Member of the Continuity of Government Commission, discusses some historical examples that demonstrate how close the nation has come to actually having to implement legislative succession to the presidency

Presidential Succession Act of 1947 Bibliography

Bibliography with primary and secondary sources related to the Presidential Succession Act of 1947.https://ir.lawnet.fordham.edu/twentyfifth_amendment_miscellaneous/1003/thumbnail.jp

An Anniversary Best Uncelebrated: The 75th Year of the Presidential Succession Act of 1947

On July 18, 1947, President Harry Truman signed the Presidential Succession Act into law. The 1947 Act placed the Speaker of the House and the Senate president pro tempore in the presidential line of succession. Seventy-five years later, the statute needs major revision. Although the 1947 Act has not been used, the nation’s good fortune may change at any moment, especially given ever-present threats to the health and safety of the president and vice president. This Article argues that Congress should revise the 1947 law in several ways, most notably by making Cabinet secretaries, in most circumstances, the immediate successors to the presidency after the vice president