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Wednesday, September 21, 2016

A Problem with "Designated Survivor"

Designated Survivor, a new series that premieres tonight on ABC, is about a low-ranking cabinet officer who becomes president after a terror attack wipes out most of the government.

Federal law (3 U.S. Code § 19) provides that the speaker of the House and the president pro tem of the Senate follow the vice president in the line of succession.  If there are vacancies in both jobs, it goes to Cabinet officers in this order:  Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.

But there is a big problem with the series premise. From the law:
An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.
In other words, as soon as the House or Senate can reassemble and choose a speaker or president pro tem, that person takes over from the cabinet member serving as acting president.  The Congressional Research Service explains:
The House elects a new Speaker, who, upon meeting the requirements, i.e., resigning as a House Member and as Speaker, then “bumps” the cabinet secretary, and assumes the office of Acting President. The President Pro Tempore serving as Acting President could be similarly bumped by a newly-elected Speaker. Both persons would be out of a job under this scenario: the President Pro Tempore, by virtue of having resigned as Member and officer of Congress in order to become Acting President and the senior cabinet secretary, by virtue of the fact that, under the act, “The taking the oath of office
... [by a cabinet secretary] shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.”
In the show's scenario, most of the members of the House and Senate die in the terror attack, presumably meaning that there would not be enough to elect a speaker or president pro tem.  In such circumstances, the law allows for expedited special elections to the House. As a practical matter, though, it might take months to repopulate and organize the House.  In the Senate, on the other hand, the 17th Amendment gives states the choice of  gubernatorial appointment or special election.  Thirty-six states take the first route, allowing the governor to fill the vacancy until the next regularly-scheduled, statewide general election.  Fourteen states require a special election, but nine of them allow for a short-term appointment until the election takes place.  So it would probably be possible to reconstitute the Senate in a matter of weeks, at which time it would choose a president pro tem, who would then take over.

Maybe the series will explain this complication away, or perhaps just simply ignore it.