The news that British Prime Minister Boris Johnson is in ICU with COVID-19 highlights the danger that all political systems face when their leaders face serious illness or incapacitation. We all expect and hope Johnson will recover soon and that, in the meantime, there will be a smooth temporary transfer of power to Deputy Prime Minister Dominic Raab. But the prime minister’s illness and the relatively smooth temporary transfer of power highlight a glaring weaknesses in our own system of presidential succession.
The U.S. system does not deal well with presidential illness or incapacitation of both the president and vice president. Or, to put it more directly, because the speaker of the House and president pro tempore are in the line of succession, it is very hard to have a smooth transfer of power in the case of the incapacitation of the president and vice president.
The British system allows for a simple transfer of power because it is a party system. Power would be transferred to another member of the governing party or coalition, and there is not as strict a separation of powers between the legislative and executive as the American system. (In truth, the specific British succession system has more complicated details to be discussed in future posts).
Our separation of powers system, and the choice that we have made in putting congressional leaders in the line of succession, makes it very complicated in the case when the president and vice president both cannot perform their duties.
We have already noted that the 25th amendment allows for a smooth transfer of power between the president and vice president in a time of presidential illness. But in the case of presidential and vice presidential illness, in theory, the presidency would pass to the next in the line of succession: the Speaker of the House.
After 9/11, the Continuity of Government Commission recommended that members of Congress be removed from the line of succession altogether. The arguments were constitutional and practical. But whatever one thinks about the larger point of removing members of Congress altogether, the more specific case of including members of Congress in the line of succession is particularly problematic for presidential and vice presidential disability.
The Constitution’s strict separation of powers does not allow a member of Congress to simultaneously hold office in the executive branch and the legislative. Our succession law is also clear that if the speaker or president pro tempore assumes the presidency, even for a short period of time, they must resign from Congress.
So, imagine the scenario where the president and vice president are both very sick, but there is a good chance that one will recover within days or weeks. Would the Speaker of the House resign from Congress and the speakership to take the presidency for a short period of time, at the end of which he or she would be out of a job?
Fans of the television show the West Wing will recall an accurately portrayed episode when the vice presidency was vacant and the Democratic president (Martin Sheen) stepped aside from the presidency temporarily for mental health issues to be replaced by the Republican speaker of the House (John Goodman). Goodman’s character resigned from the House and speakership for a short time, in what was seen as an act of public service, and then was out of a job when Bartlett reclaimed the presidency. The show accurately portrayed the process, but viewers should seriously question whether political actors in the real world would make the same choices as fictional characters.
Or consider it from the perspective of the president and vice president. They might worry that a speaker of the House of the opposite party would take the presidency for a short time and engage in partisan mischief. What if, for example, that speaker-turned-president nominated judges to be confirmed by a friendly senate or signed legislation that the president of the opposing party would have vetoed? The risk of partisan mischief even in a short period of time might discourage the president and vice president from admitting that they were temporarily incapacitated, preferring to leave the presidency rudderless for a time rather than turning the reigns over to a political opponent.
Even aside from these more extreme scenarios, would a Speaker of the House even of the same party as the president, parachuted into the presidency for a few weeks, have any sense of continuity of the president’s policy, or any knowledge of the president’s advisers?
Compare these scenarios to cabinet succession. If the secretary of state were next in the line of succession, then he or she could fill in as president for a short time until the president or vice president recovered. There would be no issues of change of party or administration. No one would lose a job by filling in. Continuity and stability in government would be preserved.
In a future post, I will discuss the shooting of President Reagan and the criticism of Secretary of State Alexander Haig for asserting that he was in charge at a key moment. It is a complicated scenario, but in many ways Al Haig was correct.
The case of the incapacitation of the president and vice president is the most glaring reason that it is unwise to have Congress in the line of succession. Other reasons will be explored in future posts.