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Presidential succession disaster waiting to happen

By Rebecca Mathews, Esq.

On Friday, a national newspaper published an article that said, “The 25th Amendment lays out the…line of succession…Pence is first… Pelosi… is second…”

But that’s not so.

In fact, if both Trump and Pence were incapacitated by COVID-19, which is a real possibility, this country could easily be thrown into anarchy. That’s not an exaggeration.

Understand this one simple statement and you will be ahead of the vast number of lawyers and journalists in this country: The U.S. Constitution is the supreme law of the land.

What does that mean? No law or rule passed anywhere, whether by Congress or your local city comission, is any good if it violates the supreme law, the U.S. Constitution.

The writers of the newspaper article didn’t understand how this works. As I said, they aren’t alone, and yet it’s really simple.

That newspaper failed to separate a constitutional amendment, which becomes part of the Constitution, from a law. The 25th Amendment designates Pence as first to become president if Trump is incapacitated. But it’s a 1947 law which designates Pelosi as second.

Very important: That 1947 law, prompted by the death of FDR, is only as good as the U.S. Supreme Court says it is.

If you didn’t understand why there’s such a fight over those Supreme Court seats, now you do. In the event of Trump and Pence’s incapacity, five conservative justices will decide Pelosi’s fate.

See what I mean? Things could get very ugly very fast.

Liberals are already chafing at a conservative majority on the court. Conservatives chafed for years when the tide was turned.

Article II of the Constitution has its own Succession Clause. If both Trump and Pence were incapacitated, it states, “Congress may by Law… declar[e] what Officer shall then act as President….”

Hence the 1947 law.

The problem is that the word “Officer” isn’t defined. As late as 2009, a commission led by senators from both parties said Pelosi was out. It said “Officers” in the Succession Clause “almost certainly refers to executive branch officials,” and Pelosi is legislative branch. That research is according to attorney Ben Miller-Gootnick and Harvard law professor Jack Goldsmith, who wrote about succession last spring.

Does this mean that the 1947 law of succession is unconstitutional and Pelosi is really out of consideration? No.

That question can only be decided by five Supreme Court justices. In the event the law is activated, Republicans will immediately challenge it and demand that the Court act.

If you’re following me, you know what happens next. Anarchy.

Not only are liberals not likely to accept a Supreme Court ruling against Pelosi, but, in the interim, who's in charge?

Who is the commander in chief?

Given our relationship with China and Russia, not to mention the need for intervention in riots, the military can’t be scratching its head. Not for one minute, much less the time it takes to litigate such an important matter.

Rebecca Mathews

The succession issue needs to be resolved now, but passing a constitutional amendment is exceedingly difficult. The 25th amendment took a crisis - the assassination of President Kennedy. It can take that to get everyone on the same page.

Know this, COVID-19 and the unresolved issue of who becomes president is a disaster waiting to happen. The constant conflict in this nation could easily leave us in succession limbo and at the mercy of our enemies.

Rebecca Mathews is an attorney focused in the area of constitutional law.