colleagues, the issue with continuity is i never got to a point where it felt really good about it. and that was because it is always a work in progress. . >> it requires the office of science and technology policy to set communication standards. i think we have got to be asking the current administration, how are they doing and when are they doing that? what are -- what is the performance of those agencies?

president obama has made clear his commitment to transparency. there is no greater issue in which we require answers to be sure that when the citizenry really needs its government to be able to work in a crisis for our safety and security, that they are ready to do that job. it is not time to ask that in the midst of a crisis. let me close by saying, i left the white house in january 2008. i started -- i was already one year into planning for the transition of presidential power that was going to happen a year later. this was an issue that tremendously concerned me. i think president bush had a unique responsibility because it was the first transition of presidential power. there was more communication between the outgoing and

incoming administrations. it is a model. i think even the new the administration would say to you that it was incredibly important what we did in terms of planning for that. two points that i think bear continued discussion and attention. one was in the context of continuity in government, i was responsible in terms of planning for the executive branch that understood it required continuity planning on the part of the judicial and legislative branch. we incorporated a provision for their continuity plans. we did not have visibility, we did not have been put into it, we try to make sure we had a dialogue. in particular, in the interagency process, people want

their own turf but do not want to occupy it. nothing used to frustrate me more in government -- that phenomenon does not reside in the executive branch. when i tried to engage congress on this issue, there was a turf push back-and-forth. the villains will remain anonymous. there was a push back and forth. then of course, we heard nothing from anybody about what they were doing. i worry that the advocacy for this legislative branch -- we had better dialogue with the supreme court. this was not about trying to dictate what their plans were. we just said if we are all going to plan for continuity, we have to be able to communicate in and

understand the broad outlines of each other's plans. there is a good deal more work that needs to be done there. lastly, and the lead in to what the panel is about today, the single thing that i was most bravely -- gravely concerned about when i left the white house was the actual transition of presidential power. that was because i could imagine that it seemed to meet not unfathomable that our enemies understood because we publicly debate about when the formal transfer is power. what if there is an attack on inauguration day before president obama took the oath? as regards the speaker and the presidential pro tem of the senate in a line of succession is unconstitutional.

and so given that, given that you didn't have cabinet secretaries sworn in for the new administration, given everybody in the governmental power structure was there, you can imagine even out of government a year later, i watched the inauguration with pride, but holding my breath waiting for everybody to get off that day. that shouldn't be. people, the national continuity coordinator should be able to have greater confidence in holding one's breath and hoping everybody gets off there safely. and so i think really, your section seven of this report is very important. there have got to be priorities, cut to the action, got to be dialogue, and we cannot wait to do this until there is a threat. so thank you, norm, for inviting me. i really applaud your effort, and hope that they listen and do something about it. [applause]

>> thank you so much, fran. i want to say first that the work she did to make the transition the first one since 9/11 the best we have ever had because it went into directions, which rarely happens. including focusing on the inaugural and getting somebody in the line of succession away from washington was unsung heroism. the second is a point that she may. we are now two months from the eighth anniversary of 9/11. and there is a lot of complacency out there. it is stunning that we have not seen the kind of action, especially in congress, and frankly in the judicial branch. much less attention to the presidential succession act that needs to be there, eight years after the fact, and we in the commission hoped to wrap up our efforts to overcome the inertia that we've had. we now have two panels that will be led successively by my

colleague, john fortier, at aei who is also the executive director of the continuity of government commission on the theory of presidential succession, or theories of presidential succession. and then by tom mann of brookings who joins me as the senior advisor to the continuity of government commission. sullenly turned over to john fortier. >> great, thank you. that was a great lead-in to a couple interesting discussions we hope to have today. we had a distinguished panel today with three panelists. you see two of them. i will introduce them all, but there's a third panelist, and because we are working in the world of continuity and contingency, we had in an emergency up yesterday where akhil arnar is not going to be with us on the panel but being with us by phone. i want to say from an on under an undisclosed location.

is a professor at yellow school so you might guess what state h is in. but it also shows our succession plan because of course this current government is essentially harvard law school. we have you lost cool as the successor just in case things go wrong. this panel is going to be more about this theory of presidential succession. i do think it is worthwhile for me to make a few points about the report. our second panel will be much more focused about the report. it will have a number of our commissioners and people who serve in government that dealt with these issues on the ground. but i want to put a couple points on the table from our report and then we'll have our three panels discussed them from three very interesting perspectives in academia, industry of constitutional law, as well as a working journalist who has looked at these issues as well. this report makes several recommendations. fran townsend referred to one of them and i won't say too much

about that, how we deal with the question of inauguration day. that's a very important question. i know that jim, commissioner of our is going to say something particular about that on the panel coming up on the second panel. but our two big recommendations really are, one, everyone in washington, everyone in the line of succession that we can all, they are all in washington. they all work here and they all live theater while we think it is a remote possibility, it is still a possibility that is something truly catastrophic happened here in washington, and as a precaution against that we advocate that there are, should be several offices created for people to sit outside of washington. those offices would be filled by the president of the united states with confirmation by the senate and they might be held by people who were former secretaries of state, former senators, former homeland security advisers. we have people who although you live in washington so that wouldn't work, but the idea is to have a backstop behind the

key people in the line of succession is the worst were to happen and we were to have to turn to people outside of washington. the second again has been referred to by fran townsend, and that is a very difficult question and i know akhil amar will refer to does much more directly, but we think it is not wise to have congressional leaders in the line of succession. not only is it not wise, we agreed with the constitutional judgments of both akhil amar and james madison, who both believe and others in between, that the constitution was set, the particular clause but also the structure of the constitution is such that a cabinet succession or executive branch of succession is not only more appropriate but feels better with unusual circumstances. one example is in the case of a president having to take over for a president who is disabled or incapacitated. the vice president very easily

might take or for the president, but if we are to go down the line, the speaker of the house, the speaker of the house has to lead the congress, leave his position as position of speaker and come to the executive branch never to go back. would've speaker choose to do that in an emergency with a president who is perhaps out of commission for or five hours or several days, could there be a change in party without an election. of course there could be. we have had a number of circumstances where ronald reagan might have been succeeded by tip o'neill, bill clinton by newt gingrich, or george w. bush by nancy pelosi. so we think there are a number of reasons why it is unwise to have congressional leaders and the line of succession, and i would say those two plus the in migration center are big recommendations. you can read the others in our report. for those of you reading to read it on line is continuity government.org. and with that, with those facts on the table, what i would like to do is then do a more general

discussion of the issue of presidential succession. our panelist will say something about the report, their reaction to it. but mostly they have come to this issue by thinking about it for a long time regarding the 25th amendment, regarding the question of congressional leaders in the line of succession. in the case of jim may and looking at the planning for continuity of government operations that surround these sues. so let me introduce our panelist. i will start with our panelist in absentia and i want to make sure he is year. is akhil amar here. >> good morning, john. >> thank you. he is a professor of law and political science at yellow and her university. he teaches both at yale law school and at the college and was a clerk for stephen breyer at the first circuit before coming to yale. is also the author of several important books, constitutional text books but also two very important books, one of the bill

of rights and one on the constitution. the first the bill of rights creation and reconstruction, and most recently americas constitution and biography. is also an author of numerous articles and has testified in congress very strongly on this question of presidential 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@@@@@@@@@ @ '@ @ @ @ @ >> and author and residents at

the international studies at johns hopkins. he has been a journalist at "de los angeles times," working on national security issues and the authors of several books. 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@@@@@@@ @ @