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The Constitution in primetime: 'Designated Survivor' and presidential succession

September 21, 2016 by Chris Calabrese

 

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2011 State of the Union Address given by President Barack Obama

ABC’s new drama, Designated Survivor, brings to the forefront a person who is almost never discussed, and a constitutional issue that often flies under the radar.

The pilot begins with Kiefer Sutherland as the Secretary of Housing and Urban Development, who is quickly thrust into the office of the presidency after an explosion on Capitol Hill during the State of the Union address kills most of the top officers of the United States.

How was Sutherland’s character, Tom Kirkman, picked as the “designated survivor”? For the most part, the person is selected at random by the President’s chief of staff. The only qualifications are that you be a cabinet member and constitutionally eligible for the presidency under Article II: a natural-born U.S. citizen, 35 years or older, with at least 14 years of residency in the United States.

In the not-too-distant past, the person chosen would go on a “mini-vacation” of sorts. President Bill Clinton’s former Secretary of Energy Bill Richardson, for example, went to a Maryland beach town and enjoyed roast beef and beer during the speech. President Ronald Reagan’s former Secretary of Agriculture John Block actually watched the 1986 speech from Jamaica. But in recent years, the designated survivor has been kept in close proximity to Washington in an undisclosed location. This has been the case since 9/11. The location is said to have several of the same amenities, including a briefing room, security staff and some of the things related to the US nuclear arsenal, although not necessarily the nuclear football itself.

Why is it that a cabinet member is picked? It’s due to the presidential line of succession. The current line, established by the Presidential Succession Act of 1947, goes as follows: Vice President, Speaker of the House, President Pro Tempore of the Senate, and the cabinet members, in order of when their departments were established.

The line of succession has changed several times in U.S. history. The framers of the Constitution in Philadelphia decided not to address the issue, leaving it to Congress instead. The first succession act was passed in 1792, and it established a slightly different order: President Pro Tempore of the Senate, Speaker of the House, Secretary of State, Secretary of Treasury and Secretary of War (now Defense).

The line of succession was later changed after the impeachment proceedings of President Andrew Johnson. Johnson was without a vice president, leaving President Pro Tempore Ben Wade next in line. He was a major voice during the proceedings in the Senate, and did not excuse himself from voting on the matter, thereby essentially casting a vote for himself to be President. It was even rumored that he had picked out his cabinet before the vote. Seeing this as a conflict of interest, the Presidential Succession Act of 1886 removed the President Pro Tempore and Speaker of the House from the line of succession. As a result, only cabinet members were in line for the presidency, eliminating dangerous conflicts of interest—motivation to assassinate the President, for instance—and allowing the President’s administration to continue under his hand-picked successors.

The 1886 line lasted until the mid-twentieth century, at which time the current line described above was established. Leaders believed it was important that elected officials, and not just executive appointees, be eligible to ascend to the presidency. Some critics have argued that President Harry Truman approved the change in part because of his close friendship with then-Speaker of the House Sam Rayburn, although that has never been proven.

While the line of succession has never been activated beyond the Vice President, the 25th Amendment—which, among other things, allows the President to appoint a Vice President if the office becomes vacant—was used twice to keep those offices filled. When Vice President Spiro Agnew and President Richard Nixon himself resigned, Congress had to go through confirmation hearings for Gerald Ford and Nelson Rockefeller, respectively. The Speaker of the House on both occasions, Carl Albert, could have dragged his feet and delayed proceedings in an effort to gain the office of President for himself. That never came to fruition, but one could argue that the House did not make an effort to speed up the process.

The most recent activation of the 25th Amendment—which also allows the President to temporarily hand off his powers to the Vice President—happened during the George W. Bush administration. President Bush had to go into surgery, and during that time, Vice President Dick Cheney was the Acting President. Cheney then went back to the vice presidency when Bush returned to the White House.

Tonight, when Tom Hickman rises from low-level cabinet member to President of the United States, presidential succession—and the constitutional issues it raises—may once again capture the attention of Americans nationwide.

Christopher Calabrese is an intern at the National Constitution Center. He is also a recent graduate of Saint Joseph’s University.

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