The GOP Has a Plan to Avoid President Pelosi

Should it come that far, the GOP has a way to challenge Pelosi's appointment as acting president.

Since Josh Hawley announced that he would object the Electoral College vote count on January 6, he has been joined in his effort by eleven other senators, over 140 GOP House members, and even Vice-President Mike Pence, the man in charge of reading the vote certificates and handling the whole procedure, who declared that he supports the lawmakers’ initiative to object.

We, those of us who accept the results of the 2020 Election for what they are and who believe all the officials, state legislatures, Secretaries of State, and Governors who have certified the vote count, can’t wait for January 20 to come and for Biden and Harris to be sworn in. As I wrote a few days ago, however, the battle isn’t won yet. January 6 promises to be one hell of a day, inside and outside Capitol building.

Even if the GOP succeeds in objecting the results and, as Ted Cruz is requesting, in obtaining their 10-day delay to “audit” the votes, many find solace in the idea that the January 20 deadline is set in stone. As the Presidential Succession Act of 1947 states without ambiguity, if, on January 21, 2021, the United States find themselves without a President or Vice-President, Speaker Nancy Pelosi will assume the role of acting president.

We’ve found the loophole in the GOP’s loophole-based strategy, thanks for coming, have a great night everybody… or did we?

I, for one, am not celebrating President Pelosi just yet.

Are you familiar with the Continuity of Government Commission? I wouldn’t be surprised if you were not. Turning to Wikipedia, we learn that it:

was a nonpartisan think tank set up in 2002 in the United States by the American Enterprise Institute (AEI) and the Brookings Institution following the September 11, 2001 terrorist attacks.

Jimmy Carter and Gerald Ford served as honorary co-chairmen of the commission until its dissolution.

From 2003 to 2011, the Commission produced three reports on Continuity of Government and Presidential Succession issues in national emergency times.

In its 2003 report, the Commission highlighted “seven significant issues with our presidential succession law that warrant attention.”
One of these issues was that:

[A] number of constitutional scholars doubt that it is constitutional to have the Speaker of the House and the President Pro Tempore of the Senate in the line of succession, because they do not meet the constitutional definition of “Officers” of the United States.

According to the experts, there is a debate about whether the House's Speaker could be appointed acting president. It all comes down to the wording “Officers of the United States”, and whether the Speaker is an Officer or not.

In its 2009 report, the Commission delved deeper into the definition of Officer and clarified:

[T]he Constitution specifies that Congress may declare “what Officer shall then act as President.” The key is word “Officer,” capitalized in the Constitution. The term probably means “Officer of the United States,” which would mean officials in the executive, but not the legislative, branch of government would be eligible to be in the line of succession.

But the term has been controversial, and at various times in our history, including today, the Presidential succession act has included congressional leaders in the line. A line of thought running from James Madison to Akhil Amar holds that it is unconstitutional to have congressional leaders in the line of succession.

This report's conclusions are not definitive, and their constitutionality would have to be examined by a court of law. However, it would appear that an argument can be made, and traced back to the Founding Fathers, that neither the Speaker of the House (2nd in-line) nor the President Pro-Tempore of the Senate (3rd in-line) can be appointed acting president.

Such a question would undoubtedly end up in front of the Supreme Court, where the debate would once again come down to the wording. Can we know how the Court would interpret the word “Officers”? We cannot for sure, but we can venture a guess.

We know that Thomas, Gorsuch, and Coney Barrett favour an originalist approach. Roberts and Alito have taken originalist views in the past, but they both value precedents over a strict, dogmatic approach. Kavanaugh’s position is a bit murkier, but we know he has adopted originalist views in the past. Overall, it would seem that the conservatives on the bench would all favour a strict understanding of the term Officer as defined by the constitution.

Therefore, should we end up in a constitutional crisis where, by January 20, the vote count hasn’t been properly administered in front of Congress, it might not be obvious that Speaker Pelosi would become the de facto acting president. As a matter of fact, we can safely assume this would be immediately challenged in court by the GOP.

It’s not over just yet.

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