The top order of business when the House of Representatives returns from recess on Oct. 15 is certain to be the impeachment inquiry into the conduct of President Donald Trump. Here's something the lawmakers should take care of first: changing the presidential line of succession to remove the speaker of the House and the president pro tempore of the Senate.
The U.S. Constitution specifies that the vice president takes over if a president leaves office. After that, presidential succession is up to Congress, which has changed the procedure several times throughout U.S. history. There are two strong reasons to change the law again now: It's the best way for the Democrats to handle impeachment, and it's best for the nation, anyway.
With Trump claiming that the constitutional process of impeachment amounts to a "coup," it's a good idea for Democrats to make it as clear as possible that they have no intention of overturning the 2016 election by installing a Democrat in the White House. That's important because Speaker Nancy Pelosi is second in line to replace Trump under current law, behind Vice President Mike Pence.
A Republican wouldn't have to be paranoid to imagine the Democrats trying to maneuver past Pence, especially now that Pence's name has come up as a possible character in the drama at the heart of the impeachment inquiry — the effort to press the president of Ukraine to dig up dirt on Trump's leading Democratic rival, former Vice President Joe Biden. As long as Pelosi remains in the line of succession and control of the White House is even potentially at stake, Republicans will have an incentive to fight back against a legitimate investigation of Pence's potential role in the Ukraine scandal.
By taking Pelosi out of the mix, Democrats wouldn't be giving up a realistic chance of gaining the presidency, anyway. If Trump is impeached by the House and removed by the Senate, Pence will become president and nominate a new vice president. That's the procedure set forth by the 25th Amendment and used twice since its ratification in 1965.
But even a little uncertainty about that outcome might be enough to push otherwise open-minded Republicans away from voting for impeachment or conviction. Removing Pelosi and the third-in-line official, Senate President Pro Tem Charles Grassley, from having any chance of becoming president would be a worthwhile gesture for Democrats to make, indicating that they accept the reality that a Republican will be president until January, 2021, no matter what happens. We can mock the idea that Republican senators care more about installing Republican judges than they do about presidential corruption, but the truth is that they were elected by voters who care deeply about retaining the power to appoint conservative judges and pass conservative laws. Even the vaguest possibility of losing that authority sets up a real conflict for them. Insure that Republicans keep the presidency, and the conflict is removed.
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In other words, by passing a simple bill, Democrats would do what they can to align Republican incentives the way they want. At no cost to themselves.
And it's the right thing to do from a good-government perspective. It's always been a mistake to insert members of Congress into the presidential line of succession; it's contrary to the entire structure of the constitutional system, which separates legislative from executive institutions and forces them to share powers.
It also violates the basic partisan arrangements of U.S. elections. Once the political parties evolved, it became essential for the president and vice president to be political allies to guarantee that voters on the winning side of presidential elections would be getting their way, at least in terms of party, even if the president died or needed to be replaced. That wasn't guaranteed at first by the Constitution, which simply took the candidates with the top two electoral-vote totals and made them president and vice president, and which also had no procedure for filling a vacancy in the vice presidency.
The deficiencies in the Constitution were partially fixed by the 12th Amendment, which made sure that the president and vice president would be elected as a linked ticket. They were further partially fixed by the 25th Amendment, which ended any ambiguity about the vice president becoming president in the case of a vacancy and arranged for filling any vacancy in the vice presidency. But unfortunately, the 1792 law inserting two members of Congress into the line of succession (later removed and then restored in 1947 to elevate the House speaker) restored a bit of that ambiguity. It should be removed.
This isn't just about, or even mainly about, impeachment. The possibility that the deaths or departures of two people could award the presidency to the party that lost the most recent election is an unacceptable risk. The law also sets up a perverse incentive during times of divided government for Congress to play constitutional hardball and refuse to confirm anyone to a vice-presidential vacancy in order to leave the speaker next in line.
Even with members of Congress removed from the line of succession, there's still one more step needed to get the system right. Under current law, 15 cabinet officers follow the Senate president pro tem, from the secretary of state at the top of the list to the secretary of homeland security at the bottom.
That's not appropriate in a world of possible terrorist mayhem and nuclear conflagration. As the Continuity in Government Commission recommended after the terrorist attacks of Sept. 11, 2001, only the four most important cabinet posts should be included. After that, the president should designate, and Congress confirm, a handful of distinguished individuals, preferably living anywhere but Washington, D.C., to serve in case of a full-blown disaster. Retired high-ranking politicians, former secretaries of state or defense, or former White House chiefs of staff would be natural choices. Instead of a "designated survivor" who might be unknown to the nation and whose service in a lesser cabinet post might be poor preparation for the White House, such a scheme would provide more reliable leadership in the unlikely event it was ever needed.
But setting that up — which Congress should do — would require careful drafting and serious debate. By contrast, eliminating Congress from the line of succession could be done quickly. When the Democrats get back to town, they should consider it an important step on the road to a legitimate impeachment of the president.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.