Publius' Forum

-By Warner Todd Huston

The Washington Post, yesterday, posted a story raising questions about a House rules change that clearly delineates a line of succession should the Speaker of the House be unable to take his place as the third in line to succeed the president in a state of emergency or vacancy.

In keeping the the liberal mantra that the Republican leadership is the most "secretive" ever, the Post seemed worried that the House rules change is somehow a danger to American democracy because the persons chosen by Speaker Hastert to succeed him has not been made public knowledge.

The Post's story over this rules change is filled with foreboding, doubt and dread over a possibility that is remote at best as well as a list that is simply perfunctory.

In a little-noticed action taken nearly four years ago, the House amended its rules dealing with the "continuity of Congress" in emergencies and the succession of speakers. The rule, cited recently in Roll Call, directs the speaker to "deliver to the Clerk a list of Members in the order in which each shall act as Speaker pro tempore... in the case of a vacancy in the office of Speaker."

But, this "little-noticed action" is merely a way to confirm who should follow Hastert (the Speaker of the House) in case he is incapacitated or otherwise unable to fill the position after the president and the vice-president should be found equally incapable to fill their own roles.

Still the Post worries:

But the rules revision made in January 2003, in response to worries about terrorist strikes that could wipe out large numbers of elected officials, appears to bestow upon a newly named replacement all the powers enjoyed by a full-time speaker elected by his peers.

One thing is certain: The identity of the speaker-in-waiting is a closely held secret.

What is the big deal?

Further, why is it that the Post finds it so odd that, in this day of world-wide terrorism, the Speaker is not too fired up about making his list -- a list that could make targets of those contained upon it -- public? Is that such a shock to democracy? Especially since such an occurrence would be quite remote anyway, the whole list idea being only a contingency, a just-in-case, plan?

Then we get to the typical legalese that lawyers love to wrangle with.

Perhaps the biggest question, some lawyers say, is whether a House speaker -- full time or pro tempore -- can assume and keep the presidency under any circumstance. A statute, not the Constitution, lists the speaker's place in the line succession.

A case can be made that no one in Congress qualifies as an "officer" eligible to assume the presidency under Article II of the Constitution, said Neil Kinkopf, a professor of law at Georgia State University. The question may never be settled, he said, because the Supreme Court would take it up only if a speaker became president and someone challenged the action in court.

It should be noted that lawyers didn't even apply the Constitution without a fight in the case of lines of succession in our past! They about took vice-president John Tyler to the Supreme Court when he grabbed the reigns of power from the deceased William Henry Harrison in 1841. Even though it seems that the Constitution placed the VP as second in line, many legal-eagles then in Congress wanted to cut Tyler out of his position as second in line for the presidency over a parsing of the Constitution claiming that it didn't explicitly state that the VP should automatically take over should a president fall.

So, along with its claims of "secret" government lists and unclear Constitutional direction, the Post gives us their "nightmare" scenario.

As for nightmarish constitutional what-ifs, Kinkopf said, "Imagine where the presidency falls not to the speaker, but to somebody on the speaker's secret list."

Tyler settled that question by just plain DOING it! Still, the lawyers griped, just as they would if the Washington Post's "nightmare" scenario took place. We live in a lawyer's grips, after all. Of course, I'd suggest that we'd have far more "nightmares" to worry over than a secret list of names should we find that the three top men are unable to fill the role of leader of the country!

In fact, should all three of those men be down for the count, we might be relieved to find a successor was protected by a little secrecy.

So, other than fearmongering and pointless worrying, what exactly was the purpose of the Post's story?

It seems clear to me that the underlying notion was to paint Bush's administration as overly secretive and anti-democracy. What else could it be?