succession in and is as i said with a james madison, and the commission believes is correct that having congressional leaders and the line of succession is unconstitutional. john feerick, to my right, has several important lines in his biography and he has something i think that all of which is wish we had. he has worked on these issues but he has also been a driving force behind an actual amendment in the constitution that addresses these matters. john worked very closely with senator birch by and others in getting the 25th amendment passed, and that is a great verification of the way in which a president, the succession may take over successors may take over for the president in times of incapacity. and also that a vice president may be replaced at a new vice president may be confirmed. and that of course we have seen

in practice, and twice and very important ways in the 1970s. he is also the author of several books on this issue. one more generally on presidential succession which is falling hand, and not on the biography also an important book about the 25th amendment itself. he has been the dean of fordham law school and is professor of law there now and teaches forces in the constitution there. and he is working on and coming out with a follow-up book, is that correct? an update of the 25th amendment which will be out in the next year or so. third to jim mann who is an author and resident at the school of at johns hopkins. he has been a journalist at los angeles times, serving in beijing working on national security issues, and the author of a couple of important books. the most recent one of the

rebellion of ronald reagan, a history of the end of the cold war just out in 2009. probably still looking good for early christmas gifts and stocking stuffers. and also importantly the rise of the balkans, the history of bush's war cabinet. and that book as well some of the writings he really does look at some of these questions of the continuity exercises that we have conducted over the years. and those exercises work very closely with some of these legal and constitutional provisions that we talk about in the report. so i would like to do in that order her to each of the three of them, and then have some little discussion on the panel and then open it up to the general audience for some questions. so i'm going to turn into akhil. >> think you, john. can you all hear me? >> yes, sir. mac wonderful. so as john mentioned, this is itself an illustration of the idea that one can in principle be in the loop, even if one is

not in the district. so i can be part of this conversation and you can listen to me, i can listen to you and yet we are geographically apart, and that's part of the idea of the presidential succession commission's report is that we should have at least one, perhaps more than one person in the loop, in the light of succession going really in real time what's happening on policy matters, but not in the district itself should a mishap occurred. before i go further, i do want to just express my deep gratitude to john fortier and to the commission in general for including me in this event. it's a special honor to be on a panel with john feerick who i learn so much who really, really is the dean of this issue in more ways than one. and tom and who has been a driving force on these matters.

i just want to set a couple of things, and then listen to the rest of you all and i look forward to a conversation. there are lots of policy reasons to remove congressional leaders from the line of succession. the problem of party discontinuity. america votes for a republican president, like ronald reagan or george bush, and ends up instead with tip o'neill or nancy pelosi. or vice versa, both for democratic president like bill clinton and ends up with newt gingrich. that's a policy concern. it particularly, these things are totally exogenous and random. it's a temptation for someone to try to affect massive regime change, if that person knows that by wiping out the president and vice president, policy could shift decisively from one

clinical party to another, really undermine what the american people thought they were voting for when they voted for president. and that's not just a hypothetical. that's happened in american history. even sometimes with valid tickets between president and vice president, you can affect a certain kind of regime change if you shift presidential power from abraham lincoln to andrew johnson or from one branch as john wilkes booth did, or from one branch of the republican party, james garfield to a different branch, chester arthur. when garfield assassin proudly announces that he's attempting regime change as he is being tackled to the ground at union station. is said i am a stallworth and garfield will be a president. and in his pocket is a letter for who should be in garfield cabinet. so this possibility of a shift of one political party to

another is in crisis from martin sheen to john goodman, for those of you who are west wing fans, is a real one. is a considerable policy concern. there are other policy considerations about the case of temporary disability, can a congressional leader easily step in just for a brief period. when that brief period will require resignation from the speakership and from the house of representatives. so those are some, many policy considerations i think that counsel in favor of removing congressional leaders from the line of succession. i just wanted to highlight a couple of constitutional considerations that reinforce those policy considerations. james madison thought that putting congressional leaders in the line of succession was

unconstitutional. maybe you don't think he was right, you know, although he was james madison. but even if there's any doubt whatsoever in your mind about the correctness of james madison's proposition, i think just the mere existence of doubt, strong doubt, reasonable doubt, the fact that there are many thoughtful people, whether they all agree with mattison, they at least think that madison had a pretty good point, a pretty strong point even if in the end they might be unsure. that that in and of itself is a reason to remove congressional from the line of succession because we don't want to have any question whatsoever, even if it's never litigated, but just in the public mind, and world opinion, about the legitimacy of transfer of power. we are talking about scenarios about hypothesis that the nation is in extremist where both the elective executive branch

officials for one reason or another out of action. could be precipitated by a terrorist event or a natural disaster, the country is reeling, the world is uncertain, markets are on the precipice perhaps of severe collapse because a massive uncertainty. someone steps forward. so and in the next-door is in the following days of blogs and paper, there is some question about the legitimacy of this transfer of power. because there is a real argument that this statute is unconstitutional. that is very much to be avoided. the second point, constitutional point whatever constitutional arguments james madison made, and he made many good ones it seems to me, there are additional constitutional considerations arising after the

25th amendment, with john feerick and senator biden were so influential in getting past. so the current law which is adopted in 1947, even if you thought appropriate disregarded the views of james madison, the original constitution provision, at the 1947 law did not in deed could not thought about how it would fit or not fit with a subsequent amendment adopted in the wake of president kennedy's assassination. the point that the minute. and there are various aspects of that 25th amendment that seemed very much in tension with the current statutory regime of congressional people in the line of succession. let me just mention a couple and then turn things back over to my fellow panelists. one point, the point that the minute is designed in large part

preserve a kind of party continuity. you vote for one party for president and that's in serious think what you're going to get for the next four years. you've over richard nixon and if you don't get richard nixon you gets bureau agnew. and if something happens to him you get someone that nixon picked because he's the one you voted for and that is gerald ford. if something happens to ford you get someone that ford picks, and that nelson rockefeller. this is what the 25th amendment provides, kind of apostolic linear procession from the president who has the mandate and they cost duchenne he ordained for your term. that's the provision of the 25th minute. google for republican president you get republican policies for four years in the white house, or for democratic presidents, four years of democratic policies are and that vision of the 25th amendment is most consistent with cabinet succession where you are getting someone to really be elected, the duly elected president handpicked or someone who

follows in that line. that's what you get with cabinet succession. you do not get that with congressional succession. so president and vice president die or disable sequentially, under the 25th amendment samaras you are going to get party continuity. but if they both are taken out of action at the same time, you get massive discontinuity in tension with the vision of the point that the minute. second tension, the 25th amendment envisions a regime in which presidents are going to, when the vice president as he becomes vacant, this is because the president is dead and the vice president stepped up on the vice president has died or resigned. when you have a vacant vice presidency, the 20th amendment provides that that vacancy filled by presidential nomination. and i think in spirit and vision contemplate a pretty smooth and speedy confirmation of the new vice presidential nominee, but the current succession statute

gives the congressional party if it's different than the presidential party its interest to drags its heels and delay the confirmation of a successor of vice president because if something happens in that window, they're congressional leaders, the other parties are going to be, going to gain the white house even though they didn't win it at the last presidential election. and that creates bad political incentives. and insane as i think that our intention with the 25th amendment vision of the quick filling and smooth filling of a vice presidential vacancy. the final 25th amendment scene that is inconsistent it seems to me with the current statutory regime is one under section three of the 25th amendment where in the event of even a temporary presidential disabilities, the president undergoing an operation or having some sort of illness that he is expected to or she is expected to recover form.

it envisions a smooth transitions of power back and forth between president and vice president, president be able to hand off presidential power to the vice president and then get handed back smoothly when the disability has ended. that cannot happen with congressional succession because someone can't both be speaker of the house and a member of congress on the one hand, and the acting president of the united states, the current statute requires and i think properly so constitutionally so, requires the congressional leaders if they're going to step up to become acting president have to step down from their positions in in congress. but that creates real difficulty if it's just a temporary transition. john goodman and the west wing episode have to give up his congressional position without knowing whether martin sheen disability is going to be short or long. that is not a problem.

a smooth transition back and forth can easily happen with a cabinet officer because a sensible new statute need not require that a cabinet officer give up his cabinet position even as he or she steps up to wield presidential powers in a temporary disability situation. they can be secretary of state and acting president, and then when the disability is eliminated they can go back to being secretary of state. is a much smoother and more seamless. so again, even if you don't think they are not persuaded that james madison was absolutely correct, even if you think it's pretty plausible to think that he got it right, that's a reason i think would change in the statute. and a second set of reasons is even if you think that congress made the right call in 1947, a subsequent constitutional amendment, the 25th amendment is really in tension in many ways with the current statutory regime of congressional leaders in the line of succession. and with that, i thank you very much and look forward to hearing

my colleagues. >> thank you, akhil. i'm going to, if i could add one antidote to bolster one of akhil's point did he mention the question of a party in congress perhaps dragging its feet, not to appoint a vice president to fill a vacancy. i have in my files some transition memos for the carl albert presidency, and those transition memos were written by ted sorensen at the request of some members of the democratic congress to add the time saw spiro agnew had left the vice presidency. there was some thought they could delay on gerald ford, richard nixon was near to being on the ropes and perhaps democrats, carl albert being speaker of thspeaker of the houe the presidency himself. there were some very detailed thinkings of the imaginations of how to present this new presidency to the american people. i think his point is that this is not a good incentive. one that if it was time to

remove richard nixon, one might have gone down the line to the secretary of state and others in the cabinet of the nixon administration but you wouldn't have had the incentive to take over that we saw in that case, not fulfilled but envisioned by some members. so i'm going to turn to john feerick. >> thank you for the invitation to comment on your report of presidential succession. let me say that the continuity of government commission plays and exceedingly important role in studying and calling attention to and making recommendations on subjects bearing on continuity in government. the report issued today highlights problems that predate the september 11, 2001, but have come into sharper fork is because of that tragic event in american history. another tragedy, the assassination of president kennedy revealed flaws in the system also not new but that event led to a major step forward with the adoption of the

25th amendment. looking broadly at our system of presidential succession, i believe our constitutional and statutory provisions have done a good job in protecting the american people in times of succession crises. but we need to constantly studied them to make sure that they are as good as they can be. the federalist said that a primary end of civil society is the safety and security of the people. without which our liberties are enabled to forge. our system of presidential succession, i suggest, has served us well in providing such safety and security. it has enabled us to move forward even in the most dramatic of circumstances, such as the death of a president or resignations of an elected president and vice president. what should we expect of a system of presidential succession that might be asked. some features important to me are providing stability and order in the transition of power, along for the continuity

of government and respecting in its functioning constitutional principles. the people must understand this system and have confidence in its elements and application. the report issued today is impressive in scope and detail. in a relatively brief document it provides an important overview of the history and provisioned on presidential succession. it identifies major problems and proposes reasonable, if not some respects, creative measures to address these problems. i make these comments and offer these observations concerning the recommendations contained in this report. the removal of the legislative leaders from the line of succession as a policy matter is long overdue, in my humble opinion. the principal reason, as i see it, is not because they can't do the job, but to assure continuity of policy and administration at a time of

crisis. a quick shift in party control of the government as of the report notes is not likely to promote stability and order. there exists as well legal issues, and you heard about those issues from professor akhil amar. and the contemplation of the constitution. and therefore eligible for succession roles. given a long history with the legislative leaders being in the light of succession, however, i would accept these legal risk if i thought the policy reasons were not compelling, because i do. this is because the constitution is not without its ambiguities in the analysis of the officer questioned. and i also note intentionally at the time the constitution was adopted, the idea of a legislative officer, and i put a quote around officer, coming to the center of power after the

removal of a governor and lieutenant governor or deputy governor, if one were to look at succession in the colonies, or look at succession as reflected in the early state constitutions with respect to those states that elected governors. you would see that the legislative person emerging after the demise of the governor, if that be the case, or the deputy governor if that be the case, was not out of the understanding of the framework of the constitution. i just know that intentionally, but as i say, i think the thrust of this report and the emphasis of mr. amar data policy in and of itself, i think strongly urge urges for the adoption of the recommendations set forth in this report.

the idea of adding to the line of succession, though so outside of washington, has merit and appeal. as i noted in my own writing 45 years ago. i wonder, however, it is wise to reduce the number of cabinet members in line to the fore as suggested in the report. i suggest that the various scenarios in the report make a case for a longer line of succession, and therefore the continuation of all the cabinet members in the line of succession. this would be in keeping with history, and consistent with the use of the entire cabinet in the determination of presidential inability under the 25th amendment. the recommendation of the report is certainly correct, that the 1947 statute needs to be clarified as to whether or not acting secretaries are included in the line of succession, assuming the current line is maintained. i can go either way on this one,

influence in part by reaching the 25th minute of including an acting secretaries where there might not be ahead of the department in the determination of presidential inability. i note also in your report that acting secretaries may be serving as head of the departments in the free inauguration period, a period of particular vulnerability as the keynote speaker today no doubt that this make even more important the recommendations of the report as to facilitate the appointment of the new cabinet. to make clear the removal of the acting secretaries of coverage under the succession act of 1947, and not deal with the pre-inauguration days of the inauguration period along the lines of this report could be imprudent. reducing a time period between the casting of electoral votes and a formal declaration by congress appears right, but i have two observations. isn't necessary to have more than a few days between the two

events in order to handle any resulting court litigation that would flow from the votes of electives. and shouldn't wait while we are at a reform of the electoral college area do much more about the electoral college system which can produce popular vote losers, tolerate electorate defections and sanctioned a choice by congress under an antique, one state, one vote formula. of course, i realize that the mandate of the commission may not reach that far. the recommendation of a special election is intriguing, but raises questions for further consideration. such as whether an election in five months under an electoral college and political party system would actually work. it's too soon, and stabilize it enough given that once that election is over another election cycle would begin.

the ford rockefeller selections in the worst possible circumstances in american history worked well in providing stability and continuity. basically i'm suggesting that where there is no president and vice president within the first two years of a presidential term, leaving the system exactly where it is at the present time rather than moving toward a system of a special presidential election. but if one were to move toward a system of a special presidential election at that point, there is an issue, maybe a constitutional issue, certainly those in 1886 that put as a cabinet in the succession law thought there was an issue as a duration of a president's term flowing from such a special election. the members of congress that debated the cabinet line of succession and put it in the succession law in 1886 removing

the president pro tem and speaker from the then law of 1792 thought that a special election would have to respect the four year term of the constitution. i just would note that issue, but i think the recommendation is an interesting recommendati recommendation. it should be out there, as it will be, for discussion and consideration, but i do think there are a lot of issues with that particular question of whether or not to have a special election. i find interesting the recommendations contained in the report on presidential incapacity. the suggestion of using the other provisions of section four of the 25th amendment as a contingency of swords, if the cabinet were unavailable through death or incapacity, appears to

me at least to allow for the existence of the two bodies existing at the same time. even though different purposes. i reserve my own judgment on that one as to consistency with the language and history of the other body provision of the 25th amendment. the report is correct to note, however, that the other by provision of section four of the amendment allows for the replacement of the cabinet as determining body in the case of inability. the suggestion of congress providing guidance to lower officials in the line of succession to have to deal with an issue of presidential inability is understandable. but i am not sure how far congress can go under the provisions of article two and the 20th amendment that allowed for the appointments of offices to serve in the line of succession. they will have their responsibility, their judgment, and how much congress can

surround that with guidance, i think raises questions that need to be discussed and focused on. finally, the recommendations in this report concerning fixing the pre-election that time period i agree with and command. and that's it. i look forward to continuing these discussions with you. thank you. [applause] >> did you want to mention the anniversary that you noted to me as well? john has a historical. >> well, professor amar made reference to garfield and arthur. i believe that today is the anniversary of the shooting of, you have to check on that, it's either july 1 or july 2, 1881 of

garfield in union station. and it's just a historical note. >> jim mann. >> thanks very much. i'm in a little different position. i'm a journalist and author. and in a funny position because the main problem that can cause me to write about presidential succession is addressed by the very issuance of this report, and in that sense is taken care of as i will later explain. and yet i'm also here to warn about some of the solutions that the report comes up with, which i think have some problems. i'll say, you know, as a journalist and author, the issue of succession comes up year in and year out in funny ways. this is not just with a cabinet member who is absent from the state of the union address.

and the one that brought it home to me, just over 10 years ago, i was a correspondent interested in asia about to go with president clinton on a trip to asia at the end of 1998. and at the last minute president clinton didn't go because he stayed back to take some military action against iraq, actually. we are talking about a militant under military action of a couple days, not six years. vice president gore went instead. and the same five or six reporters who were going to go on air force one with president clinton went with vice president gore, who welcomed us to the plane and began showing us around the plane with great relish. . .