Constitutional path could put Pompeo in the Oval Office

Constitutional path could put Pompeo in the Oval Office, by John Yoo.

What if Donald Trump becomes seriously ill and unable to do his job? … Vice-President Mike Pence would become acting president until Trump sends a second written declaration that he can perform his duties again. …

Pence has tested negative for the coronavirus. But suppose that changes and both he and Trump are too sick to perform the presidency’s duties. …

The Presidential Succession Act of 1947 puts two congressional leaders in the line of presidential succession. The House of Representatives speaker (Nancy Pelosi) is immediately behind the vice-president followed by the Senate president pro tem (Chuck Grassley). From there, the order continues to the secretary of state (Mike Pompeo) and the other cabinet members in the order in which their departments were created. …

But Yale law professor Akhil Amar persuasively argued in 1995 (at the prospect of speaker Newt Gingrich becoming president should congress impeach Bill Clinton) that this provision is unconstitutional. The Constitution generally — but not always — uses “officers” to mean members of the executive branch. Further, the Incompatibility Clause of Article I provides that “no person holding any office under the United States, shall be a member of either house during his continuance in office”.

That implies that neither Pelosi nor Grassley could become acting president without resigning from congress, which would remove them from the statutory line of succession. The cleanest reading of the law, then, is that if Trump and Pence were both unable to serve as president, Pompeo would become acting president.

Trump, then Pence, then (subject to legal interpretation) Pompeo.

What if there are electoral irregularities and general chaos about the voting in the next election?

The much-maligned Electoral College could stabilise the system. When voters cast a ballot for Trump or Joe Biden, they are actually choosing slates of electors pledged to support one of the candidates. Even though the Supreme Court held this summer that states can punish electors who don’t keep those promises, the Founders intended for them to exercise discretion. In any case, if the candidate is unavailable to serve, an elector commits no breach of faith in voting for someone else.

If … the Electoral College … lacks a majority … the election would go to congress. The house would choose the president, with each state delegation getting one vote; the Senate, the vice-president.

In the current congress, Republicans hold majorities in 26 state house delegations, Democrats hold 23, and one state is evenly split. But it would be the new congress that would vote, and it could fail to reach a majority either through a 25-25 split or several evenly balanced delegations. …

If the house proves unable to reach a majority, the vice president-elect would accede. But that assumes there is one. The Senate could also divide 50-50 with no vice-president available to cast the deciding vote.

If there’s no majority of electors, house delegations or senators, the federal succession law would kick in again. Pelosi might think her time has come, but the argument would be stronger for inaugurating President Pompeo.

It probably won’t happen, but I found it interesting.