Do Professors Akhil and Vikram Amar Still Think the Presidential Succession Act is Unconstitutional?
In an influential 1995 article, Professors Akhil and Vikram Amar argued that the 1947 Presidential Succession Act was unconstitutional. This law places the Speaker of the House next in line immediately after the Vice President. The Amars contended that this statute was unconstitutional. Their analysis began with the text of the Succession Clause. It provides:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”
If the Speaker is an “Officer,” for purposes of the Succession Clause, then there is no problem. The Constitution expressly empowers Congress to place “Officers” in the line of succession. If the Speaker is not an “Officer” for purposes of the Succession Clause, then the Presidential Succession Act is unconstitutional.
But the Amars contended that the Speaker is not an “Officer” for purposes of the Succession Clause. The Amars wrote that the word “Officer,” as used in “the Succession Clause[,] is merely shorthand for any of the . . . longer formulations” of the Constitution’s “office”- and “officer”-language, such as “officers of the United States” and “office . . . under the United States.” The Amars explained that “[a]s a textual matter,” the varied references to officers of the United States and office under the United States “seemingly describe the same stations.” The Amars did entertain the possibility that the Framers drew a “civil/military distinction” among different types of officers. But they posited that “the modifying terms ‘of,’ ‘under,’ and ‘under the Authority of’ are essentially synonymous.” In short, the Amars concluded that the Constitution’s divergent “office”-language create
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