Line of succession, redux

Bruce Ackerman is worried that there might be a secret executive order establishing an alternative line of succession. If it exists, and "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." If worst comes to worst, "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" designated by the executive order?

3 U.S.C. § 19 defines the Presidential line of Succession. In the event that there is neither a President nor a Vice-President, § 19 provides for the Speaker of the House to act as President; if she cannot or will not, the President pro tem of the Senate will do so; if he cannot or will not then the Secretary of State; and so on down through the cabinet. Congress' authority to adopt this provision rests on an explicit Constitutional grant of power: "the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected." Art. II § 1 Cl. 6.

Had Congress failed to exercise this authority, there might arguably be space for an executive order establishing a line of succession, just as there presumably is for an executive order picking up the line of succession where § 19 leaves off. "When the President takes measures incompatible with the expressed or implied will of Congress," however, "his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Youngstown v. Sawyer, 343 U.S. 343, 637-8 (1952) (Jackson, J., concurring); cf. Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804). When Congress has comprehensively exercised a discrete and exclusive power explicitly granted to it by the Constitution, it has occupied the field, and claims of Presidential power in derogation of the statute must fail. The President cannot claim anything more than interstitial authority over the line of succession, just as "Art. I §8's grant of power to Congress to 'make rules concerning captures on land and water' would invest [Congress] with sufficient power to overcome even the broadest assertion of Article II authority concerning conditions and treatment of captured enemy combatants."

So -- in one sense, what crisis? All else being equal, a Presidential order instructing the military to take orders from the Secretary of State in the event that President and Vice-President are dead has as much legal force as a note from Condi's mom. An assertion of power doesn't create a crisis; does Ackerman think that Al Haig's claim to be in charge following Reagan's shooting was a "constitutional crisis," for example?

But is all else equal?

Congress can only occupy the field pursuant to the succession clause if the statute it enacts is constitutionally valid. And there are reasons to think that § 19 is not.

It is a matter of "first principles ... [that t]he Constitution creates a Federal Government of enumerated powers."1 Because it follows from this axiom that every grant of power, broad or narrow, necessarily covers only a finite amount of ground, the question arises: What is the perimeter of Article II's authorization for Congress to "by law provide for the case of removal, death, resignation or inability, both of the President and Vice President"? That power is textually limited to "declaring what officer shall then act as President" (emphasis added). Some limitations are obvious on the face of that language: only an officer, not a private citizen, can be designated. And clearly, this language does not encompass state or private officers.2

Section 19 provides for the the Speaker of the House and the President pro tem of the Senate to succeed most directly to the Presidency, but are members of Congress officers of the United States and therefore eligible to be designees under the succession clause? Many have argued that they are not.3 Indeed, no less an authority than James Madison "suggested that legislators were not officers in the constitutional sense ... and that Congress certainly err[ed] in allowing legislators to succeed to the Presidency."4

Use of the "officer" terminology elsewhere in the Constitution illustrates the textual difficulty of arguing that Congressmen and Senators are officers and therefore eligible to be in whatever line of succession Congress enacts.

The incompatibility clause, Art. I § 6 Cl. 2, provides that "no person holding any office under the United States[] shall be a member of either House [of Congress] during his continuance in office"; if an officer of the United States is forbidden from being a member of Congress, how can a member of Congress be regarded as an officer of the United States? The appointments clause, Art. II § 2 Cl. 2, provides that the President will "nominate, and by and with the advice and consent of the Senate, shall appoint" all officers of the United States, including but not limited to ambassadors and judges; if officers of the United States are appointed by the President, how can the independently-elected members of Congress be regarded as officers of the United States? And Article VI explicitly juxtaposes government officers and legislators at the state level: "Members of the several State Legislatures, and all executive and judicial Officers ... shall be bound by Oath or Affirmation, to support this Constitution."5

Another (subtler) potential textual pitfall, identified by Profs. Akhil and Vikram Amar, is that the succession clause allows Congress to "declar[e] what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected" (emphasis added). This could be read, as Madison read it, to require that the officer "must retain his predicate office in order to become and remain Acting President."6 That is problematic for a member of Congress because the incompatibility clause would presumably require their resignation before succeeding to the Presidency even if § 19 did not. If so, that produces an ancillary problem: "Congress can designate only officers, not private citizens, to act as President."7 Even if members of Congress are officers, "the moment an officer resigns, he becomes a mere citizen and is thus ineligible to succeed to or remain in the Oval Office" within the scope of any legislation authorized by the succession clause.8 By contrast, there is no Constitutional bar to one executive officer holding two executive offices.

In construing the Constitution, the touchstone is its original public meaning.9 Thus, for example, when we recently considered whether John McCain was eligible to be President, the issue was: "what would educated persons contemporaneous to the Constitution have understood 'natural born Citizen' to mean?"

What did "officer" mean at the time of the framing? The problem here sharpens considerably if one accepts the view that "[t]he common law of the time of the Founding ... indicates that delegated sovereign authority is a key characteristic of an office."10 One early state court put it like this: "'every office, in the constitutional meaning of the term, implies an authority to exercise some portion of the sovereign power, either in the making, executing or administering the laws.'"11 That view had become the standard account by the end of the nineteenth century12; for example, in 1898, the House Judiciary Committee concluded that a "member of a commission created by law to investigate and report, but having no legislative, judicial, or executive powers, was not an officer within the meaning of the constitutional inhibition [of the incompatibility clause]."13

If the foregoing is an accurate appraisal of the original understanding of "officer," it follows that a member of Congress is a poor fit for the term. Plainly, neither the legislature generally nor any particular member can exercise executive or judicial functions; that is the essence of the separation of powers. Less obviously, though, nor does a member of Congress exercise legislative power. That power is vested in the institution, not in an individual member thereof. "Congress isn't a unitary entity; it has two chambers," and if one of those chambers cannot wield the legislative power without the other,14 it follows a fortiori that no one member of one of those chambers can be supposed to do so.

It would be reasonable to conclude that as a matter of text, structure and original meaning, the Constitution does not seem to consider members of Congress to be "officers of the United States," and that placing them in the line of succession lies beyond the perimeter of Congress' authority. Officers eligible to be in line seem to be confined to persons appointed and commissioned by the President, who are indeed ineligible to be members of Congress.

Still, as the Profs. Amar concede, this conclusion is not a slam dunk.15 The "predicate office" problem is a sensible reading of the clause, but not the only conceivable one; it could and "has been contended that the Constitution merely requires the successor to be an officer of the United States at the time he [or she] begins to act as President."16

Another argument against deeming legislators "officers" also falls short. Treating legislators (or even just some of them - more about this anon) as officers for purposes of the succession clause requires that they be treated as officers for purposes of the impeachment clause, too. Wouldn't an interpretation that allowed Congress can impeach members of Congress make surplussage of the expulsion clause?17 I think not; the two clauses can be read harmoniously as conferring distinct powers. The expulsion clause allows two thirds of the House to expel a member, but gives the House no power to expel a Senator, and, in a closely-divided House, might allow partisan gridlock to prevent removal of a Congressman who deserved it. If members of Congress are impeachable, however, a simple majority of the House could seek removal of a Congressman with the concurrence of a supermajority of the Senate ("[t]he Senate shall have the sole power to try all impeachments ... [but] no person shall be convicted without the concurrence of two thirds of the members present"). Indeed, with the concurrence of two-thirds of the Senate, could seek to remove a member of that body, too. There are problems with that reading, of course - but in evaluating surplassage, it suffices that the text will bear that meaning, not that we would prefer or otherwise adopt it, and I think such a reading is plausible enough to defeat the surplussage argument.

The upshot is that the text leaves the door slightly ajar. Tradition, on the other hand, points in completely the opposite direction.

Congress has exercised the authority granted to it by the Succession Clause three times. In 1792, after considerable wrangling -- mostly driven by the desire of some lawmakers to get Secretary of State Thomas Jefferson as close to the Presidency as possible, and the even stronger desire of a greater number of the same to keep him as far from the Presidency as possible18 -- Congress provided that the line of succession would be comprised of the President pro tem of the Senate followed by the Speaker of the House.19 This arrangement continued until 1886, when Congress replaced the Speaker and the President pro tem with an Article II officer-only line of succession running through the cabinet.20 Finally, in 1947, Congress enacted the modern § 19,21 and apart from housekeeping changes in response to creation and abolition of cabinet offices,22 things have hung there ever since.

Having previously pointed to tradition as a source of legal authority, I can't ignore the fact that starting in the founding era, and since then "[f]or all but sixty-one of our more than 200 years of constitutional history ... [the Speaker and the President pro tem] have been on the line of succession to the Presidency."23 Even when the text seems clear, this cannot be lightly cast aside.24

Recall Justice Scalia's "Shakespeare Principle":

[T]he test of a judge’s "analytic formulas — his rules — is whether, when applied to traditional situations, they yield the results that American society has traditionally accepted." If an argument produces a result wildly at variance with “society's accepted constitutional traditions,” a fortiori one that calls into question long-settled questions of law, it is more likely to be the argument that is wrong than the traditional expectations. 25

Consider also what has been said about the power of tradition in two Establishment Clause cases. In Walz v. Tax Commission, a case challenging the constitutionality of church tax exemptions Justice Brennan said:

The existence from the beginning of the Nation's life of a practice ... is not conclusive of its constitutionality. But such practice is a fact of considerable import in the interpretation of abstract constitutional language. On its face, the Establishment Clause is reasonably susceptible of different interpretations regarding the exemptions. This Court's interpretation of the clause, accordingly, is appropriately influenced by the reading it has received in the practices of the Nation. As Mr. Justice Holmes observed in an analogous context, in resolving such questions of interpretation "a page of history is worth a volume of logic." The more longstanding and widely accepted a practice, the greater its impact upon constitutional interpretation.26

In Walz, "[h]istory [wa]s particularly compelling ... because of the undeviating acceptance given religious tax exemptions from our earliest days as a Nation."27 Likewise, Marsh v. Chambers28 considered "[t]he unbroken practice ... [of] two centuries": whether the provision of paid legislative chaplains violated the Establishment Clause.29 But this is a closer case, as I explain next.

Three difficulties bedevil application of the argument from tradition represented by cases like Walz and Marsh.

First, it is less clear that the men who wrote the 1792 Succession Act should be presumed to have acted in conformance with Article II than it is that the Congress that provided for paid chaplains should be presumed to have acted in conformance with the First Amendment. Why is it that we think it "[c]lear[]" that "the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment"30? Because it is not supposed that men believe two contradictory things at once. It would be incoherent for a legislator to vote for a ban on establishing of religion and to vote, in the same week,31 for a provision she believed was an establishment of religion. We must infer that a reasonable legislator, to vote for both, must have believed that whatever an establishment of religion was, paying chaplains wasn't it. By contrast, although there were men in Congress who had attended the Constitutional Convention (and they divided on the question of including Article I officers32), and although we afford significant weight to the views of the early Congress on Constitutional questions,33 the same presumption cannot operate.

Second, the conflict between text and practice seems sharper here. It is by no means obvious that paying legislative chaplains amount to an establishment of religion within the original understanding of the text of the First Amendment. Thus, in any question governed by the original meaning of that language rather than the doctrinal sarcophagus erected over it by courts in the 20th Century, it seems far easier to say that Congress acted within the perimeter of the First Amendment's text, even if it was pushing the margins, than it is to say that Congress acted within the perimeter of Article II's text in placing two of its own in the line of succession. The Marsh Court recognized that "[s]tanding alone, historical patterns cannot justify contemporary violations of constitutional guarantees."34 Like Justice Scalia, I argue "for the role of tradition in giving content ... to ambiguous constitutional text; no tradition can supersede the Constitution" or its clear textual command.35 Thus, deference to tradition requires at least ambiguity: we must "adhere to the text where the text is clear. Where the text leaves room for interpretation ... [we should be] guided in what it means by our societal traditions.36

Third, unlike the legislative chaplains at issue in Marsh or the tax exemptions at issue in Walz, the tradition here is not unbroken or "undeviating," and unlike the patronage at issue in Rutan, the constitutionality of including legislators in the line of succession is hardly "unchallenged."37 The 1792 Act remained on the books for almost a century; then the Speaker and President pro tem disappeared for six decades, and since their reinstatement in 1947, have been with us for another six decades. But what is the correct level of generality at which to identify the relevant tradition?38 Is the relevant tradition the inclusion of the Speaker and President pro tem, or is it the constitutionality of including them? Contrary to recent Eighth Amendment cases, culminating in the court's deeply flawed ruling in Kennedy v. Louisiana, there is no reason to suppose that in choosing not to have a particular law at a given time, society is deciding that it couldn't have such a law again at some point in the future. Although constitutional concerns were present in the debates over all three acts,39 in both 1886 and 1947, the primary motivations appear to have been practical concerns.40 Suppose the Congressional chaplains had been suspended for a period, for practical reasons -- an emergency had demanded a period of symbolic frugality, perhaps, or inability to find a holy man willing to be in the halls of Congress. If there was no suggestion that the suspension implied a judgment that paying Chaplains was constitutionally suspect, would that have broken the tradition that decided Marsh?

"The argument from practice is strong here both because the textual and structural case is close and because the practice is unusually uniform and reflects to some degree the concurrence or acquiescence of all three branches of the federal government.41 The question is agonizingly close, but I conclude that with two exceptions, § 19 is constitutional.

It is commonplace to say that where possible, a statute should be read in such a way as to avoid conflict between it and the Constitution,42 Is it as uncontroversial a proposition to say that we should read an ambiguous constitutional provision in such a way that it doesn't conflict with a clear statute? If such a concept is ever appealing, surely it would be in the highly unusual circumstance that the provision at issue dates back to the founding era and has been the law of the land for most of the time since. The more specific formulation of the proposed principle, then, would be that where the text permits, an ambiguous constitutional provision should be construed in such a way that it does not prevent a result it has traditionally been understood to permit.

As noted above, though, ambiguity is needed for such a principle to operate. The textual wiggle room here is that although it is clear that members of Congress aren't officers of the United States,43 the succession clause doesn't say "what Officer of the United States." It says "what Officer," and even though an undifferentiated member of Congress would have little claim to be either, the Constitution could be read as conferring at least a kind of "officer" status on the Speaker. Art. I § 2 instructs the House of Representatives to "choose their speaker and other officers"; ex visceribus verborum, the Speaker is as officer of the House of Representatives. Since "[t]he text of the Succession Clause does not decisively answer the question of what class of 'Officers' Congress may insert in the line of succession,"44 might we read "officer" broadly, to include "all federal 'Officers' identified in the Constitution, a set that would exclude ordinary legislators but include the 'Officers' of both Houses of Congress"?45 (Think carefully: if the Speaker can be in the line of succession for this reason, doesn't it seem to follow that so, too, can the Clerk of the House and the Sergent-at-Arms of the Senate?)

Given the authority of the original public meaning,46 it bears noting that founding-era dictionaries do not compel a "technical and narrow"47 reading of "officer."48 Nor was the concept of the succession of a legislative officer to an executive post unknown at the time; the Albany Plan had proposed just that.49

Some of the textual objections noted in Part I become infirm on closer examination, too. I presumed above that the incompatibility clause above would require the resignation of the Speaker in the event that § 19 was triggered, and that this caused problems if the succession clause requires the retention of the predicate office, as the Amars argue.50 That presumption does not hold. As Prof. Calabresi concedes, "[t]he incompatability clause is not technically violated by a Speaker who serves as Acting President because such an individual would not actually hold any office under the United States"; unlike the Vice-President, an acting President does not become President but merely "would have the powers and duties of the Presidency annexed temporarily to his own legislative office...."51 I do not disagree with Profs. Amar & Amar, Calabresi and Manning that this would ordinarily be an intolerable situation, but the argument that it is so at odds with the rest of the Constitutional plan that it must fail, well, fails. Legislation adopted pursuant to the succession clause is, of its very nature, extraordinary; the clause allows Congress to ensure continuity of government in time of unprecedented crisis. No one would suggest that a band aid is an adequate substitute for skin, but in a pinch, better that than an open wound; to point out that in an emergency, ordinary norms might give way to the greater imperative of surviving the immediate crisis is to point out very little indeed.

In the end, so far as the inclusion of the Speaker is concerned, my conclusion ends up not so far from Prof. Manning's conclusion. He said:

If I were advising a legislator, I might well say ... that substantial constitutional concerns surround the inclusion of the Speaker and President pro tempore in the line of succession, and perhaps a law for times of exigency should be free of doubt. If I were advising a judge on a congressional fait accompli, my advice would almost surely be different: The question is debatable, and Congress' reasonable implementation of ambiguous language in the Succession Clause should be respected.52

The only difference is that I do not rest my conclusion, as Prof. Manning seems to, on the notion just quoted - "that Congress' implementation of the Succession Clause warrants the presumption of constitutionality traditionally enjoyed by Acts of Congress"53; I remain skeptical of the presumption of constitutionality. Rather, my conclusion is that the question is debatable, as Prof. Manning says, and that the original meaning of the Constitutional text is not sufficiently clear to permit me to override and discard two centuries of practice that have implicitly judged the Speaker's inclusion in the line of succession to be consistent with the succession clause. The tie goes to tradition, and the traditional practice has been to include the Speaker in the line of succession; Congress may continue to do so.54

Describing the narrowness of my conclusion brings us neatly to the first exception I take to § 19. The incompatibility clause, as we have seen, does not require the Speaker's resignation before succession, but § 19 does. That requirement, coinage of the 1947 act, lacks the protections of tradition that I have said protect the inclusion of the Speaker in the line of succession. This creates an awkward problem. If the Speaker is not compelled to resign by the incompatibility clause, then the "predicate office" problem and the requirement that a designee be an officer (as one who resigns is no longer) loom large once again.55 In my view, this compels the deeply-troubling conclusion that § 19 is unconstitutional insofar as its resignation requirement in fact designates not the Speaker, but one who would until recently have been the Speaker. Fortunately, the resignation requirement is quite plainly severable,56 with the upshot that this infirmity does not jeopardize the Speaker's place in the line of succession.57

The second exception I take is that the foregoing analysis leaves the President pro tem is left up the creek without a paddle. Unlike the organizing clauses for the House, the parallel organizing clauses for the Senate provide that the Vice-President of the United States is to be the President of the Senate, and that "[t]he Senate shall choose their other officers, and also a President pro tempore"58 I concluded that the Speaker could be included in the line of succession because the Speaker was clearly an Article I officer and it was too ambiguous whether the succession clause permitted the Speaker to be included in the line of succession to overrule two centuries of practice that, for the most part, has done so. But the threshold issue is that the Speaker is unambiguously an Article I officer; by contrast, it is clear from the text of Article I § 3 that the President pro tem is not an "officer" of the Senate. The text here lacks the ambiguity that would allow tradition to clarify it, and I therefore conclude that the inclusion of the President pro tempore of the Senate in the line of succession is unconstitutional.

In some ways, this solomonic resolution is the worst possible result. "Absolute certainty about the order of the Presidential succession is vitally important" in normal times59; it can only be more so in days such as these, where the the scenario Ackerman envisions is hardly unimaginable. Nevertheless, this conclusion does not create a constitutional crisis. Section 19 is still controlling, and no executive order can supplant it. Should worst come to worst, the military would be required to follow the orders of Acting President Pelosi; should she be unavailable, the defect in § 19 would lead to the President pro tempore being skipped, and power would flow on down the line, regardless of any ex ante order from a (by then dead) President.

Finally, Ackerman has never seen the executive order that so concerns him. It is possible that one exists, and perhaps a word is in order to note that if it does, it does not follow that it necessarily creates a problem here.

We should keep in mind that executive power is delegable; if it were not, the government could scarcely function. Although the Constitution vests the executive power in one President, this means only that the President controls the executive branch,60 not that he personally undertake to enforce the laws. "The impossibility that one man should be able to perform all the great business of the State," said President Washington, "I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust."61 So long as the President is alive, he or she may delegate their functions.

I noted above that the President presumably retains some interstitial authority to fill statutory gaps and ambiguities. This post has assumed the existence of a situation where § 19 unambiguously applies, i.e. where the President and Vice-President are certainly dead. Historically, though, "[i]n terms of actual occurrence, inability is the most pressing problem involved in presidential succession."62 And given the threats we face today, Ackerman's scenario of the Speaker claiming authority under § 19 seems more likely to happen in a scenario where it is not clear whether the President and Vice-President are alive. Suppose a hypothetical terrorist attack similar to that depicted in The Sum of All Fears: terrorists detonate a small nuclear weapon in Washington, D.C. There is reason to believe that the President and Vice-President made it to the shelter, but their status is undetermined and communications with the bunker are down. Who now acts as President?

The Twenty-fifth Amendment doesn't help. Like the succession clause, it has a limited perimeter; it provides for the Vice-President to become President if the President is dead, but we don't know that the President is dead, and we don't know what the Vice-President's status is, either.63 Can the speaker claim the throne under § 19? In such a situation, it would be reasonable to answer "yes" because the President is at least temporarily unable to act as President.64

But suppose that the President is determined to be alive in the bunker, functionally (but not entirely) incommunicado. Is it so clear that there is a Presidential "inability" triggering § 19? The word is vague - indeed, it was purposely left undefined in the Twenty-Fifth Amendment precisely "in order to provide maiximum flexibility to the constitututional decision makers, at a time of crisis, to do what the thought was in the best interests of the country."65 Absent statutory changes, this is the sort of interstitial space that, in my view, could be filled in advance by an appropriate executive order delegating authority outside of § 19.

Nevertheless, such an order does not and could not take priority over § 19 itself; if it exists, and if it is legitimate, it occupies different ground left open by superior law. To be sure, such an order would need to walk a very narrow path with the sort of delicacy that has not been a hallmark of the Bush administration; if - but only if - it attempts to displace § 19 would it be the "illegal move[]" that Ackerman assumes that it must be.

There are several reasons to think that § 19 is pathological, as a matter of policy; the Amars identify some, and last year, I bit the bullet and agreed with Sandy Levinson's critique here. I continue to think that the statute should be changed, preferably by simply repealing the 1947 act. Nevertheless, for the reasons herein given, I do not believe that the Constitution compels that result.

Related:
Line of succession

Post facto:
Ten things that aren't changing (11/5/08)

1. 1. United States v. Lopez, 514 U.S. 549, 552 (1995).
2. 2. See Steven Calabresi, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155, 161 (1995) ("Calabresi, Succession"); John Manning, Not Proved: Some Lingering Questions About Legislative Succession to the Presidency, 48 Stan. L. Rev. 141, 143 (1995).
3. 3. See, e.g., Akhil & Vikram Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113 (1995); Calabresi, Succession, supra; John Fortier & Norman Ornstein, Presidential succession and congressional leaders, 53 Cath. U. L. Rev. 993 (2004); Ruth Silva, Presidential Succession (1951); John Feerick, From Failing Hands: The Story of Presidential Succession 264-9 (1964).
4. 4. Amars, supra, at 116 (alteration in original) (Madison's italics) (internal quotation marks omitted); accord Silva, supra, at 133.
5. 5. Two post facto Amendments are interesting to compare: the Fourteenth and Twentieth Amendments. § 3 of the Fourteenth Amendment echoes Article VI's division: "No one shall be a Senator or Representative in Congress, ... or hold any office, civil or military...." Perhaps having learned from the ambiguity of the original succession clause, § 3 of the Twentieth Amendment authorized Congress to "provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, ... and such person shall act accordingly until a President or Vice President shall have qualified" (emphasis added).
6. 6. Amars, at 120; see also Feerick, supra, at 268.
7. 7. Amars, at 120.
8. 8. Ibid.
9. 9. See Antonin Scalia, A Matter of Interpretation (1997); District of Columbia v. Heller, 554 U.S. __, 128 S. Ct. __ (2008).
10. 10. U.S. Department of Justice Office of Legal Counsel Memorandum Opinion, Officers of the United States Within the Meaning of the Appointments Clause, 2007 WL. 1292268, OLC Lexis 3 at 7 (April, 16, 2007) (available online here).
11. 11. Id. at 9 (quoting Opinion of the Justices, 3 Maine 481, 482 (1822) (internal quotation marks omitted)). One founding-era dictionary offers twin definitions for "OFFICE (in a Civil sense)," the more specific of which accords with the foregoing descriptions of officers: "a particular charge or trust whereby a man is authorized to do something." Nathan Bailey, An Universal Etymological English Dictionary (4th ed. 1756).
12. 12. OLC Memo, at 10 (citing treatises).
13. 13. Id. at 10-11; Hind's Precedents of the House of Representatives 604.
14. 14. See INS v. Chadha, 462 U.S. 919 (1983).
15. 15. Amars, at 116.
16. 16. Feerick, at 268.
17. 17. Art. I § 5 Cl. 2 ("[e]ach House may ..., with the concurrence of two thirds, expel a member"). It is also argued, in a similar vein, that legislators are not impeachable, but the Fifth Congress believed that they were. As Andy McCarthy has poined out, although "the Blount case is frequently regarded as authority for the proposition that members of congress may not be impeached[,] ... that is a shaky conclusion. Blount, after all, was impeached. The Senate could have tried him—it simply elected not to" (McCarthy's italics). See also 3 Journal of the House of Representatives 72-3 (1797); 7 Annals of Cong. 448-66 (1797).
18. 18. Silva, at 113-4; Feerick, at 60-1; Charles Hamlin, The Presidential Succession Act of 1886, 18 Harv. L. Rev. 182, 186 (1905) ("had it not been for the jealousy of Jefferson entertained by the federalists, there is little doubt but that the Secretary of State would have been designated").
19. 19. Act of March 1, 1792, 1 Stat. 240 § 9 (reprinted in Silva, at 178).
20. 20. Act of Jan. 19, 1886, 24 Stat. 1 (reprinted in Silva, at 179).
21. 21. Act of July 18, 1947, 61 Stat. 380 (reprinted in Silva, at 180-1).
22. 22. See Act of Sept. 9, 1965, 79 Stat. 669 § 10(a) (added Secretary of Health, Education, and Welfare and Secretary of Housing and Urban Development); Act of Oct. 15, 1966, 80 Stat. 948 (added Secretary of Transportation); Act of Aug. 12, 1970, 84 Stat. 775 (removed Postmaster General); Act of Aug. 4, 1977, 91 Stat. 609 (added Secretary of Energy); Act of Oct. 17, 1979, 93 Stat. 692 (added Secretary of Education; updated title of Sec. HEW to Sec. H&HS); Act of Oct. 25, 1988, 102 Stat. 2643 (added Secretary of Veterans Affairs); Act of Mar. 9, 2006, 120 Stat. 247 (added Secretary of Homeland Security).
23. 23. Calabresi, Succession, at 166.
24. 24. Cf. Manning, supra, at 150-1:

    [T]he Supreme Court has long recognized that the practice of the early Congresses provides evidence of constitutional meaning. The adoption of a statutory scheme allowing for legislative succession in the early Congresses should, therefore, influence our reading of the Succession Clause.
    
    This is not to say that the 1792 Act is conclusive of the constitutional question. As Marbury illustrates, the early Congresses did enact unconstitutional statutes. The actions of the early Congresses, moreover, carry weight "only in cases of doubt." But to accept such qualifications is not to deny the essential proposition: When an issue is close (as this one is), we should be cautious about displacing the constitutional judgments of a generation far more familiar with the relevant context than we are today.

    (Footnotes omitted).

25. 25. Scalia expressed a similar sentiment dissenting from United States v. Virginia: "whatever abstract tests we may choose to devise, they cannot supersede -- and indeed ought to be crafted so as to reflect -- those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts." 518 U.S. 515, 568 (1996) (Scalia, J., dissenting). See also Schad v. Arizona, 501 U.S. 624, 650 (1991) (Scalia, J., concurring) ("when judges test their individual notions of 'fairness' against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges").
26. 26. Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 681 (1970) (Brennan, J., concurring) (citation omitted).
27. 27. Ibid.
28. 28. Marsh v. Chambers, 463 U.S. 783 (1983).
29. 29. Id. at 795.
30. 30. Id. at 788.
31. 31. Id. at 788; McCreary County v. ACLU of Kentucky, 545 U.S. 844, __ (2005) (Scalia, J., dissenting).
32. 32. See Feerick, at 59-60.
33. 33. But see n.23, supra.
34. 34. Marsh, supra, at 790.
35. 35. Rutan v. Republican Party of Illinois, 497 U.S. 62, 96 n.1 (Scalia, J., dissenting).
36. 36. George Kannar, The Constitutional Catechism of Justice Scalia, 99 Yale L.J. 1297 at n.113 (quoting Justice Scalia). Prof. Calabresi counsels that there is "a well-established Burkean practice and tradition of venerating the text and first principles of the Constitution and of appealing to it to trump both contrary caselaw and contrary practices and traditions." He claims that "American Burkeans who are not textualists are actually secret Anglophiles who mistake the American Constitution for the British Constitution -- where islands of text float in a sea of tradition, instead of the other way around." Steven Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke, 57 Ala. L. Rev. 635, 637 (2006). This is not to the contrary of what I have said, I think, insofar as it presupposes either a clear textual command or an original meaning that is discernible and specific enough to trump a statute. When those factors are not present, as they may not be here, I do not read Calabresi to foreclose the use of traditional practice to give content to ambiguous text.
37. 37. Rutan, supra, at 95 (Scalia, J., dissenting) ("when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down").
38. 38. See Frank Easterbrook, Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992).
39. 39. Senator Hatch, for example, anticipated much of the Amars' critique. See 93 Cong. Rec. 7766-70 (1947).
40. 40. Feerick at 140-6; Silva, at 117-23; Calabresi, Succession, at 167; Fortier & Ornstein, supra, at 996-7. But see Manning, supra, at 151 (asserting that "one of the major reasons for ... [the 1886 act] apparently was concern about perceived constitutional infirmities in the 1792 Act"); Hamlin, supra, at 188 (similar).
41. 41. Calabresi, Succession, at 166 (footnote omitted).
42. 42. See DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575 (1988); Ashwander v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring).
43. 43. See Part I, supra.
44. 44. Manning, supra, at 143.
45. 45. Ibid.
46. 46. See supra Part I.B.
47. 47. Hatch, op. cit., at 7769.
48. 48. See, e.g. Thomas Sheridan, A Complete Dictionary of the English Language (1796) (defining "office" as "[a] public charge or employment" and an officer as "[a] man employed by the publick"); Samuel Johnson & John Walker, A Dictionary of the English Language 503 (1828) (same); see Heller, supra, 554 U.S. at __ ("[n]ormal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation" (emphasis added)). A mid-19th Century edition of Webster defines "office" similarly but offers a narrow definition of "officer": "one who holds an office or commission." Noah Webster, Dictionary of the English Language: Abridged 293 (1845). Bailey, op. cit. n.__, supra, offers two definitions; the more specific of which, already cited, is the secondary definition, however. He defined "OFFICE (in a Civil sense)" as "the mutual aid and assistance which mankind owe to one another; also a particular charge or trust whereby a man is authorized to do something" (emphasis added).
49. 49. See Feerick, at 35.
50. 50. See supra, Part I.A.
51. 51. Calabresi, Succession, at 165. Cf. Manning, supra, at 146-7; Feerick, at 61-2 (quoting Madison) ("[t]he Constitution says Congress may declare what officers, &c., which seems to make it not an appointment or translation, but an annexation of one office or trust to another office"). Of course, there are reasons to consider this result atrocious as a normative matter, and it engenders serious structural concerns. See Calabresi, Succession, at 165-6.
52. 52. Manning, supra, at 153.
53. 53. Manning, supra, at 141.
54. 54. This reliance on tradition also answers the question raised above, viz., whether Congress could designate other Congressional officers such as the Clerk of the House. They could not.
55. 55. See supra, Part I.A ¶ 3.
56. 56. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Ayotte v. Planned Parenthood, 546 U.S. 320 (2006).
57. 57. Thus The West Wing got it wrong. See The West Wing, Twenty Five, Ep. 4-23 (2003).
58. 58. Art. I § 3. See Silva, at 136.
59. 59. Calabresi, Succession, at 175.
60. 60. See Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting); SF: Bell v. Lithwick (3/211/07) ("Executive branch actors are intermediaries for the executive power, and surrogates for the President in whom that power is vested by the Constitution").
61. 61. 30 Writings of George Washington 333, 334 (May 25, 1789) (John C. Fitzpatrick ed., 1939).
62. 62. Silva, at 84.
63. 63. Even modifying the hypothetical to allow the Vice-President to have been out of town doesn't help. The Twenty-Fifth Amendment provides for the Vice-President to take over when the President is unable to discharge the office, but only with the assent of the majority of the Cabinet, who would presumably be dead in such a situation. In practice, of course, these concerns are vaporous. In a true emergency such as that outlined in the hypothetical, the Vice-President would act as President, and no one would even blink an eye, just as Justice Stevens concerns about the anti-comandeering doctrine in the Printz case were shown ill-founded by the events of September 11th, 2001. See Ann Althouse, The Vigor of the Anti-Comandeering Doctrine in Times of Terror, 69 Brook. L. Rev. 1231, 1269 (2004). In times of crisis, many questions will be resolved by extraconstitutional means. Should this concern us?
64. 64. What constitutes an inability has been debated, see generally Silva, ch. IV, but it seems reasonable to agree with Ruth Silva's practical conclusion: "'inability covers any situation which restrains a President from the actual exercise of his powers at a time when the public interest requires the exercise of these powers." Op. cit., 92.
65. 65. The Heritage Guide to the Constitution 431 (John Forte & Matthew Spalding, eds. 2005) (per John Feerick).