Congressional Record: July 22, 2004 (Senate)
Page S8768-S8776
SUBMITTED RESOLUTIONS
SENATE RESOLUTION 419--EXPRESSING THE SENSE OF THE SENATE WITH RESPECT
TO THE CONTINUITY OF GOVERNMENT AND THE SMOOTH TRANSITION OF EXECUTIVE
POWER
Mr. CORNYN submitted the following resolution; which was referred to
the Committee on Rules and Administration:
S. Res. 419
Whereas members of the Senate, regardless of political
party affiliation, agree that the American people deserve a
Government that is failsafe and foolproof, and that
terrorists should never have the ability to disrupt the
operations of the Government;
Whereas continuity of governmental operations in the wake
of a catastrophic terrorist attack remains a pressing issue
of national importance before the United States Congress;
Whereas, at a minimum, terrorists should never have the
ability, by launching a terrorist attack, to change the
political party that is in control of the Government,
regardless of which party is in power;
Whereas, whenever control of the White House shall change
from one political party to another, the outgoing President
and the incoming President should work together, and with the
Senate to the extent determined appropriate by the Senate, to
ensure a smooth transition of executive power, in the
interest of the American people;
Whereas, under the current presidential succession statute
in section 19 of title 3, United States Code, the members of
the cabinet, defined as the heads of the statutory executive
departments under section 101 of title 5, United States Code,
fall within the line of succession to the presidency;
Whereas, during previous presidential transition periods,
the incoming President has had to serve with cabinet members
from the prior administration, including subcabinet officials
from the prior administration acting as cabinet members, for
at least some period of time;
Whereas the Constitution vests the appointment power of
executive branch officials in the President, by and with the
advice and consent of the Senate, and nothing in this
resolution is intended to alter either the constitutional
power of the President or the constitutional function of the
Senate with regard to the confirmation of presidential
nominees;
Whereas an incoming President cannot exercise the
constitutional powers of the President, in order to ensure a
smooth transition of Government, until noon on the 20th day
of January, pursuant to the terms of the twentieth amendment
to the Constitution;
Whereas cooperation between the incoming and the outgoing
President is therefore the only way to ensure a smooth
transition of Government;
Whereas Congress throughout history has acted consistently
and in a bipartisan fashion to encourage measures to ensure
the smooth transition of executive power from one President
to another, such as through the enactment of the Presidential
Transition Act of 1963 (3 U.S.C. 102 note; Public Law 88-277)
and subsequent amendments;
Whereas Congress has previously concluded that ``[t]he
national interest requires'' that ``the orderly transfer of
the executive power in connection with the expiration of the
term of office of a President and the inauguration of a new
President . . . be accomplished so as to assure continuity in
the faithful execution of the laws and in the conduct of the
affairs of the Federal Government, both domestic and
foreign'' under the Presidential Transition Act of 1963 (3
U.S.C. 102 note; Public Law 88-277);
Whereas Congress has further concluded that ``[a]ny
disruption occasioned by the transfer of the executive power
could produce results detrimental to the safety and well-
being of the United States and its people'' under the
Presidential Transition Act of 1963 (3 U.S.C. 102 note;
Public Law 88-277); and
Whereas Congress has previously expressed its intent ``that
appropriate actions be authorized and taken to avoid or
minimize any disruption'' and ``that all officers of the
Government so conduct the affairs of the Government for which
they exercise responsibility and authority as (1) to be
mindful of problems occasioned by transitions in the office
of the President, (2) to take appropriate lawful steps to
avoid or minimize disruptions that might be occasioned by the
transfer of the executive power, and (3) otherwise to promote
orderly transitions in the office of President'' under the
Presidential Transition Act of 1963 (3 U.S.C. 102 note;
Public Law 88-277): Now, therefore, be it
Resolved, that it is the sense of the Senate that during
the period preceding the end of a term of office in which a
President will not be serving a succeeding term--
(1) that President should consider submitting the
nominations of individuals to the Senate who are selected by
the President-elect for offices that fall within the line of
succession;
(2) the Senate should consider conducting confirmation
proceedings and votes on the nominations described under
paragraph (1), to the extent determined appropriate by the
Senate, between January 3 and January 20 before the
Inauguration; and
(3) that President should consider agreeing to sign and
deliver commissions for all approved nominations on January
20 before the Inauguration to ensure continuity of
Government.
Mr. CORNYN. Mr. President, yesterday I rose to address this body in
support of a Senate resolution on a profoundly nonpartisan issue. As
President Bush and the United States government continue their fight to
protect the American way of life in the war against terrorism, they
have also been fighting another battle to protect American ideals and
principles--a battle against human trafficking and slavery. Most
Americans would be shocked to learn that the institution of slavery--an
institution that hundreds of thousands of Americans shed precious blood
to destroy--continues to persist today--not just around the world, but
hidden in communities across America. This is a new fight against an
old evil. It is the most fundamental civil rights issue of our time.
I was pleased to work with my lead Democrat co-sponsor, Senator
Schumer, as well as with Senators Graham of South Carolina, Leahy, and
Clinton, to introduce and obtain full Senate approval of Senate
Resolution 414. That resolution expressed strong support for the
Justice Department's recent efforts to combat human trafficking, under
the leadership of the Civil Rights Division. The resolution noted that
the Justice Department recently held its first-ever National Conference
on Human Trafficking in Tampa, Florida, where it announced a new
comprehensive model state anti-trafficking law. The resolution
encouraged states to consider adopting such laws where they do not
currently exist.
Today, I rise in support of a Senate resolution on another profoundly
nonpartisan issue--the preservation of our system of government in the
wake of a catastrophic terrorist attack. Just as most Americans would
be shocked to learn about the incidence of forced labor and sexual
servitude in communities across the country, I believe most Americans
would be shocked to learn that our laws are profoundly inadequate to
ensure continuity of governmental operations in the wake of a
catastrophic terrorist attack.
I have spent a great deal of time and energy this past year on the
issue of continuity of government. Last September, I chaired two
hearings to examine continuity of government problems in the two
political branches of government. On September 9, I chaired a hearing
of the Senate Judiciary Committee to examine continuity problems in the
Congress, and on September 16, Senator Lott and I co-chaired a joint
hearing of the Senate Rules and Judiciary Committees to look at
problems in our system of Presidential succession.
These are not partisan issues. These are imminently nonpartisan
issues, and so I was pleased to work on those hearings with my
distinguished colleagues on the other side of the aisle--Senator Leahy,
the ranking member of the Senate Judiciary Committee, and Senator
Feingold, the ranking member of the Senate Judiciary Subcommittee on
the Constitution, Civil Rights, and Property Rights, which I am honored
to chair.
In November, I introduced Senate Joint Resolution 23, a proposed
constitutional amendment to ensure continuity of Congress.
Constitutional legal experts across the political spectrum have
recognized that our current laws are inadequate to ensure continuity of
Congressional operations in the wake of a catastrophic terrorist
attack, and that only a constitutional amendment can ensure that the
American people will never have to suffer under martial law.
The constitutional amendment I introduced implements the
recommendations of the bipartisan blue ribbon Continuity of Government
Commission, sponsored by the American Enterprise Institute and the
Brookings Institution. That commission is led by two of our nation's
truly most distinguished American statesmen--its honorary co-chairmen,
former Presidents Jimmy Carter and Gerald Ford--as well as by its two
distinguished co-chairmen, former Senator Alan Simpson and former White
House Counsel Lloyd Cutler. The commission is comprised of former high-
ranking government officials of both parties, and ably staffed by
Norman Ornstein, John Fortier, and Thomas Mann.
I know that there are sharp divisions in the House over what kinds of
continuity measures to adopt--whether
[[Page S8771]]
emergency interim appointments are appropriate and necessary, or if
expedited special elections alone are sufficient. It is important to
recognize that my amendment takes no position in that debate. My
amendment would not compel either chamber of Congress to adopt any
particular methodology for redressing continuity problems. It would
simply empower Congress to adopt legislation to guarantee continuity of
Congressional operations--power that Congress does not currently
possess. It is modeled after Article II of the Constitution, which
empowers Congress to adopt legislation to provide for continuity of the
Presidency.
On January 27 of this year, I chaired a hearing of the Senate
Judiciary Committee so that legal experts could examine the need for
Senate Joint Resolution 23. And on that same day, I introduced
implementing legislation (S. 2031), entitled the Continuity of the
Senate Act of 2004. Continuity problems affect both the House and the
Senate. Indeed, the Senate arguably faces the most dire problem of
all--if a majority of Senators are incapacitated, Congress could be
disabled for as long as four years, the amount of time it takes to
elect a new majority of Senators. The Continuity of the Senate Act of
2004 would implement the constitutional amendment proposed by Senate
Joint Resolution 23. It would simply empower each state to adopt
continuity measures for their senators in case of incapacity--following
the model of the 17th Amendment with respect to Senate vacancies. I am
pleased that Senators Dodd and Lott agreed to serve as original co-
sponsors of this legislation. After all, they are the ranking Democrat
and Republican, respectively, on the Senate Rules Committee--the
committee that would have jurisdiction to consider the Continuity of
the Senate Act, in the event that the constitutional amendment I have
proposed is approved by two-thirds of the Congress and three-fourths of
the states.
On May 13, I convened a meeting of the Senate Judiciary Subcommittee
on the Constitution, Civil Rights and Property Rights--the subcommittee
that possesses jurisdiction over constitutional amendments. I am
pleased that the subcommittee approved Senate Joint Resolution 23 on a
bipartisan vote. I am particularly pleased that the resolution was
supported by my distinguished colleague, the subcommittee's ranking
Democrat, Senator Feingold. I know from working with him these past
several months that he is no fan of constitutional amendments. And of
course, everyone in this chamber agrees that the Constitution should
not be amended casually. Yet he recognized--as have constitutional
legal experts across the political spectrum--that the only way to
ensure continuity of Congressional operations is a constitutional
amendment. I look forward to working with Senator Hatch, the chairman
of the Senate Judiciary Committee, in coming weeks and months so that
the full committee can consider the merits of, and the need for, Senate
Joint Resolution 23.
Of course, Congress is not the only institution that faces serious
problems of continuity of operations. Our laws are also inadequate with
respect to Presidential succession. Article II of the Constitution
gives Congress the power to enact laws to address Presidential
succession--just as my proposed constitutional amendment would give
Congress such power with respect to continuity of Congress. Yet legal
experts across the political spectrum have written that the current
Presidential succession statute is unconstitutional and unworkable.
Accordingly, I introduced legislation in February, right before
President's Day, to reform the Presidential succession statute (S.
2073). That same day, I also introduced a Senate resolution (S. Con.
Res. 89) to establish a protocol for ensuring proper transition between
an outgoing President and a newly elected President. Both measures were
cosponsored by Senator Lott, the chairman of the Rules Committee, which
exercises jurisdiction over such matters.
I am pleased to introduce a more robust version of that same
resolution today for the Senate's consideration, in the form of a
Senate resolution that requires the consent of only this body. It is an
important step to ensuring that, no matter what, at a minimum,
terrorists will never be able to determine, by launching a terrorist
strike, which party controls the White House.
Imagine if you will that it is January 20, the inauguration date for
a new incoming President. The sun is shining, and the American people
are watching. The new President and Vice President sit on the center
platform just steps away from the Capitol Rotunda, joined by American
and foreign dignitaries. Leaders of both Houses of Congress sit nearby
as well. It is a beautiful day--but as national security and continuity
of government experts have long recognized, it is also a window of
vulnerability. If terrorists launched a successful strike on
Inauguration Day, it could wipe out not only our new President, but
also the first three people who are in the line of Presidential
succession under our current Presidential succession statute--the Vice
President, the Speaker of the House, and the President pro tempore of
the Senate.
What happens next?
Well, imagine that the election of the prior year had resulted in a
change of political party control of the White House. During previous
Presidential transition periods, a new incoming President has had to
serve with Cabinet members from the prior administration--including
sub-Cabinet officials from the prior administration acting as Cabinet
members--for at least some period of time. That means that, in the
event of a successful inaugural day attack, the official who could rise
to become Acting President, perhaps serving for four full years, could
very well be a member of the outgoing administration--indeed, a member
of the political party that the American people expelled from office at
the most recent election.
The resolution I introduce today would help prevent this from
happening. As the resolution acknowledges, members of the Senate,
regardless of political party affiliation, agree that the American
people deserve a Government that is failsafe and foolproof. We agree
that terrorists should never have the ability to disrupt the operations
of the Government. We agree that continuity of governmental operations
in the wake of a catastrophic terrorist attack remains a pressing issue
of national importance before the United States Congress. And we agree
that, at a minimum, terrorists should never have the ability, by
launching a terrorist attack, to change the political party that is in
control of the Government--a principle that applies regardless of which
party is in power.
An incoming President, of course, cannot exercise the constitutional
powers of the President, in order to ensure a smooth transition of
Government, until noon on the 20th day of January, pursuant to the
terms of the Twentieth Amendment of the Constitution. Accordingly,
cooperation between the incoming and the outgoing President is the only
way to ensure a smooth transition of government.
Whenever control of the White House shall change from one political
party to another, the outgoing President and the incoming President
should work together, and with the Senate to the extent deemed
appropriate by the Senate, to ensure a smooth transition of executive
power, in the interest of the American people. Accordingly, the
resolution establishes a non-binding protocol--a protocol with three
parts.
First, the resolution states that an outgoing President should
consider submitting the nominations of individuals to the Senate who
are selected by the President-elect for offices that fall within the
line of succession. Under the current Presidential succession statute
(3 U.S.C. Sec. 19), that means the members of the Cabinet, defined as
the heads of the statutory executive departments (5 U.S.C. Sec. 101).
Second, the resolution provides that the Senate should consider
conducting confirmation proceedings and votes on Cabinet nominations,
to the extent deemed appropriate by the Senate, between January 3 and
January 20 before the Inauguration. Of course, nothing in the
resolution purports to alter the constitutional powers of either the
President or the Senate, and indeed, nothing in this resolution could
constitutionally do so.
And third, the resolution encourages the outgoing President to
consider agreeing to sign and deliver commissions for all approved
nominations on January 20 before the Inauguration--all to ensure
continuity of government.
[[Page S8772]]
I am pleased that this resolution has received such strong support
amongst experts in the fields of continuity of government and
constitutional law. This is a truly nonpartisan effort, so I am
particularly pleased that the resolution is so enthusiastically
supported by constitutional legal experts such as Walter Dellinger,
Cass Sunstein, Laurence Tribe, Michael Gerhardt, and Howard Wasserman.
Rather than repeat their words here, I will simply ask unanimous
consent that their letters be included in the Congressional Record at
the close of my remarks.
Throughout history, Congress has acted consistently and in a
bipartisan fashion to encourage measures to ensure the smooth
transition of Executive power from one President to another. I think,
for example, of the Presidential Transition Act of 1963, and its
subsequent amendments. In that Act, Congress concluded that ``[t]he
national interest requires'' that ``the orderly transfer of the
executive power in connection with the expiration of the term of office
of a President and the inauguration of a new President . . . be
accomplished so as to assure continuity in the faithful execution of
the laws and in the conduct of the affairs of the Federal Government,
both domestic and foreign.'' Congress further concluded that ``[a]ny
disruption occasioned by the transfer of the executive power could
produce results detrimental to the safety and well-being of the United
States and its people.'' Accordingly, Congress expressed its intent
``that appropriate actions be authorized and taken to avoid or minimize
any disruption'' and ``that all officers of the Government so conduct
the affairs of the Government for which they exercise responsibility
and authority as (1) to be mindful of problems occasioned by
transitions in the office of President, (2) to take appropriate lawful
steps to avoid or minimize disruptions that might be occasioned by the
transfer of the executive power, and (3) otherwise to promote orderly
transitions in the office of President.''
Close cooperation between an incoming President and an outgoing
President is the only way to ensure a smooth transition of government.
So this evening, just days away from the first of our nation's two
great political conventions, I am pleased to introduce a resolution to
ensure continuity of government during a unique window of
vulnerability--the Presidential inaugural period. And I look forward to
further debate and discussion on other legislation to ensure the
continuity of our national government.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Harvard University,
Cambridge, MA, July 22, 2004.
Hon. John Cornyn,
Chairman, U.S. Senate Judiciary Subcommittee on the
Constitution, Civil Rights & Property Rights, Washington,
DC.
Dear Senator Cornyn: I am writing to commend you for
drafting the Resolution whose text you have shared with me
expressing the sense of the Senate with respect to continuity
of government and the smooth transition of Executive power. I
write not as a friend and supporter of Senators Kerry and
Edwards, whose election this November to the presidency and
vice presidency I believe you know I strongly favor, but as a
citizen of this nation and, for more than 30 years, a
professor of constitutional law who is devoted to the success
of its government of, by, and for the people,
The Resolution I have read is a non-binding measure that
creates no obligations or rights and imposes no restrictions.
For this reason among others, it is fully consistent with the
Constitution of the United States. Unlike some such non-
binding measures, however, this one seems to me extremely
wise. It entails no posturing, and the recommendations it
makes for the transition from an incumbent president's
administration to that of a newly elected president who is
not the incumbent--a situation I fervently hope we will
confront between November 2, 2004, and January 20, 2005--seem
to me not only sensible but potentially crucial, especially
during a period of our history when fanatic international
terrorism threatens to disrupt our political and governmental
processes. The recommendations are such that a non-partisan,
good-government perspective would commend this Resolution to
the entire Senate, and I strongly support its adoption.
Yours truly,
Laurence Tribe.
____
University of Chicago Law School,
Chicago, IL, July 22, 2004.
Senator John Cornyn,
Chairman, Senate Subcommittee on the Constitution, Civil
Rights, and Property Rights, Senate Committee on the
Judiciary, U.S. Senate, Washington, DC.
Dear Senator Cornyn: I am writing to express support, from
the standpoint of constitutional structure and good
governance, for the proposed resolution involving continuity
in government, which would contain the following language:
``Resolved, that it is the sense of the Senate that during
the period preceding the end of a term of office in which a
President will not be serving a succeeding term--
(1) that President should consider submitting the
nominations of individuals to the Senate who are selected by
the President-elect for offices that fall within the line of
succession;
(2) the Senate should consider conducting confirmation
proceedings and votes on the nominations described under
paragraph (1), to the extent deemed appropriate by the
Senate, between January 3 and January 20 before the
Inauguration; and
(3) that President should consider agreeing to sign and
deliver commissions for all approved nominations on January
20 before the Inauguration, to ensure continuity of
Government''
The significant advantage of the suggested process is that
in the event of terrorist attack or other large-scale
disruption, it would reduce the risk that there would be
``gaps'' in the personnel and operation of the Executive
Branch. If the process operates as suggested, then there
would be no period in which certain high-level offices (those
that fall within the line of succession) lack personnel of
the President's choosing. A disadvantage of the suggested
process is that it would put perhaps unwelcome time pressure
on both the President-elect and the Senate--while also
putting the sitting President in a mildly awkward position.
Nonetheless, the text of the Resolution is not rigid
(``should consider''), and there are large virtues, for the
President-elect and the Senate alike, of providing an early,
expeditious process for ensuring that the President's Cabinet
is in place. The process thus promises to reduce a serious
danger without compromising important structural values.
One of the most central goals of our constitutional system
is to create an energetic and unitary executive branch, one
that is capable of prompt and expeditious action. See The
Federalist No. 70; E. Corwin, The President--Office and
Powers 3-30 (1957). This resolution, at once bipartisan and
nonpartisan, would serve to promote that goal under
contemporary conditions.
Sincerely,
Cass R. Sunstein.
____
O'Melveny & Myers LLP,
Washington, DC, July 22, 2004.
Re: ``Smooth Transition'' Proposed Legislation.
Hon. John Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: On rare occasions a suggestion comes
along that is truly a good government idea. The ``smooth
transition'' resolution you have proposed is a premier
example. It is a simple idea that would strengthen our
government, regardless of party and regardless of ideology.
To have the outgoing President, in his final weeks in office,
submit to the Senate the nominations of those individuals the
new President-elect has chosen for the cabinet is not merely
a convenience: it is essential in an era in which our
government must be ever vigilant.
I served in the White House in February, March and April of
1993. As you will recall, the position of Attorney General
was not filled in a timely fashion. In my view this resulted
in serious mistakes being made, as the President turned to
the White House staff for advice and legal opinions that
would have come from the Department of Justice had there been
a functioning Attorney General. Because of the great and
steady influence of career lawyers at Justice, the advice
from that Department is generally more solid and consistent
over time than a President receives when he has to rely on
the White House to carry out duties that should be performed
by the Attorney General. So I know first hand how important
it is to have new Department Heads in place at the moment the
new President is sworn in to office.
Your amendment does more than facilitate the smooth
functioning of government. It sets the right tone at a time
when so many partisan battles divide us in spirit. Our
parties should compete vigorously on policy and present
alternative visions and plans to the American people. But
then we should facilitate rather than inhibit the capacity of
the prevailing party to do the job the American people have
chosen them to do. This is a sentiment I expressed four years
ago in the pages of The Wall Street Journal as the new
administration of President George W. Bush came to power. I
am taking the liberty of including a copy of ``The Wrong Way
to Oppose'' from the Journal for January 10, 2001. I wish I
had thought of your idea and included it in that piece.
I hope your resolution is adopted with great bi-partisan
support. Best wishes to you.
Very truly yours,
Walter E. Dellinger,
of O'Melveny & Myers LLP.
[[Page S8773]]
The College of William & Mary
School of Law,
Williamsburg, VA, July 22, 2004.
Hon. John Cornyn,
U.S. Senate, Committee on the Judiciary, Subcommittee on the
Constitution, Civil Rights, and Property Rights,
Washington, DC.
Dear Senator Cornyn: I write to express my support for the
resolution you are introducing suggesting that the President
and Senate should each consider taking particular actions
later this year to ensure a smooth transition and the
continuity of government. I share your concerns about
possibly crippling attacks against our government by
terrorists and your efforts to ameliorate the effects of any
such attacks. I believe your proposed resolution expresses a
noble ideal for the President and the Senate to work together
as smoothly and quickly as possible to ensure that the
administration is fully staffed and operational during the
critical period after the 2004 presidential election and
before Inauguration Day in January 2005.
I appreciate that resolutions on presidential nominations
touch upon extremely sensitive constitutional terrain. The
Appointments Clause of the Constitution vests the President
with the authority to nominate certain high-ranking
officials, and presidents have fiercely protected this
prerogative from encroachment by the Senate. The Appointments
Clause also vests the Senate with the authority to provide
its ``Advice and Consent'' on presidential nominations, and
the Senate has defended this authority from interference by
any other branch. I believe your resolution has merit in part
because it accords due respect for the respective
appointments authorities of the President and the Senate. It
is non-binding. It does not require either branch to do
anything it prefers not to do. It shows due respect for the
autonomy of the President and the Senate in exercising their
respective authorities over federal appointments. Separation
of powers problems arise when one branch encroaches upon, or
seeks to usurp, the authority of another branch. But, to its
credit, the resolution avoids such problems by both
acknowledging that its purpose is not to ``alter the
constitutional power of the President or the constitutional
function of the Senate with regard to the confirmation of
Presidential nominations'' and by calling upon the President
and the Senate merely to ``consider'' taking certain actions
later this year--the President in possibly nominating the
President-elect's nominees for cabinet and other offices
requiring confirmation, and the Senate in considering holding
confirmation proceedings and votes on these nominations prior
to the Inaugural.
I understand that the President-Elect may not be able, for
whatever reason, to nominate all the people he would like by
his inaugural. I also understand that the Senate may not be
able, for whatever reason, to act as quickly as either the
President-Elect or resolution suggests it ought to in taking
final action upon his nominations. I also understand that
Presidents-Elect's nominees sometimes run into troubles in
confirmation proceedings, and there is no way to prevent at
least some impasses from occurring. But your resolution does
not require either the President or the Senate to do anything
in particular; it merely expresses a noble ideal shared by
those voting for it.
I believe that this resolution, like your proposed
constitutional amendment S.J. Res. 23, should be commended
for its non-partisanship. I share your hope for a smooth
transition and continuity of the government for whoever wins
this November.
Very truly yours,
Michael J. Gerhardt,
Arthur B. Hanson Professor of Law.
Florida International University,
Miami, FL, July 22, 2004.
Hon. John C. Cornyn,
U.S. Senate,
Washington, DC.
Dear Senator Cornyn: I write in support of your Sense-of-
Senate Resolution, proposing a new informal practice for
nominating and confirming Cabinet officials when the White
House changes party hands. The Resolution urges an outgoing
President to nominate, and the new Senate to hold hearings
and confirm, some or all of the President-elect's Cabinet
prior to the January 20 Inauguration.
Thomas Jefferson's ascension to the presidency has been
labeled the Revolution of 1800 in part because it marked one
of the first peaceful and orderly transfers of executive
power. The continued peaceful and orderly transfer of
executive power between political parties and ideologies has
become a hallmark of the American constitutional order.
However, the Inauguration ceremony that attends this
orderly transfer of power, with leaders of all three branches
of the federal government present, marks one of two periods
in which presidential succession and continuity is uniquely
vulnerable to terrorist attack. The other vulnerable period
is when the President addresses a Joint Session of Congress.
And the safety valve used then--having one person in the line
of presidential succession, whether the Vice President or a
Cabinet member, outside of Washington--is not available in
the Inauguration scenario. The only people in the line of
presidential succession not present at the January 20
ceremony are Cabinet Secretaries (or perhaps only deputies
acting as secretary) remaining from the outgoing
administration. It would be inconsistent with the expressed
will of the People if a terrorist event on January 20, 2004
left the nation (only to use the next possible example of
this scenario) not with four years of a President Kerry and
Vice President Edwards, but with four years of Acting
President Rumsfeld.
The proposal addresses this problem by ensuring that the
Cabinet members in the line of succession during the handover
of power on noon on January 20 will be the hand-picked policy
surrogates of the incoming President, those who had been
chosen to help the new President exercise executive power and
represent the national electoral constituency. Should tragedy
strike the Inauguration, the executive branch that emerges
conforms politically and ideologically with the public will
expressed the previous November. The acting president would
be of the same political party and policy commitments as the
person just chosen by the People through the Electoral
College.
I emphasize several aspects of the proposed practice.
First, it urges the Senate to hold hearings and floor votes
``to the extent feasible.'' This practice does not short-
circuit the Senate's advice-and-consent role or rigorous
vetting of the President-elect's Cabinet. It commands that
the Senate take best efforts in the two-plus weeks between
January 3 and Inauguration Day to confirm the new Cabinet,
particularly some or all of the high-profile positions at the
top of the Departments of State, Treasury, Defense, Justice,
and Homeland Security. Second, it urges the outgoing
President to sign and deliver Commissions to the new
Secretaries on the morning of January 20, prior to the
ceremony. Until that point, the lame-duck President still
acts in the event of emergencies with the counsel of his own
Cabinet.
Finally, the Resolution must be considered in light of the
Presidential Succession Act of 2004, S. 2073, 108th Cong.
(2004), which (properly, both as a constitutional and policy
matter) removes legislative officers from the line of
presidential succession. The practice created by the
Resolution, in connection with the proposed changes to the
succession statute, thus provides the only way to ensure a
popularly and politically justifiable method of presidential
succession in the event of an Inauguration Day tragedy.
This informal practice benefits both political parties and
the American People as a whole, ensuring a smooth transition
whenever executive power transfers between parties. In fact,
the partisan cooperation inherent in the practice (an
outgoing President of one party nominating the policy support
of his successor) may ease the political rancor in the wake
of a heated election. This plan deserves the support of both
parties and should be passed.
Thank you for your time. Best of luck in your efforts.
Cordially,
Howard M. Wassermann.
______
