The ‘what if’ scenarios of the presidency

By NEIL H. SIMON
Media General News Service
Published: November 12, 2008

WASHINGTON — Among his firsts, Barack Obama on Jan. 20 will become the first new president sworn in since the terrorist attacks of Sept. 11, 2001.

Click here for political coverage from our Washington Bureau

His inauguration also will mark the first wartime transfer of executive power in the United States since 1969.

It’s no secret that enemies still want to attack the United States. What would happen if an attack should take the life of the president- or vice president-elect in the weeks before the inauguration?

Lawmakers focused on this dire scenario shortly after 9/11 when Rep. Brad Sherman, D-Calif., introduced legislation to clarify procedures for replacing the head of state should a mass casualty event occur.

“You never want to have to wonder, ‘Who is president?’ Sherman said. “You certainly don’t want to do that in a time of national crisis.”

Members of Congress have not wanted to deal with the issue, and Sherman’s bill has languished in committee. Some governance scholars say the bill is excessive in trying to address every “what if” doomsday scenario.

“I think we have a lot of fail-safes built in to the system now,” said Stephen Hess, who advised Presidents Ford and Carter.

No House members co-sponsored Sherman’s bill in the current Congress.

“Many members, to be perfectly blunt, don’t want to deal with this,” said Rep. Brian Baird, D-Wash., who introduced a bill last year to address legislative continuity in the event of mass casualties. “I think we must deal with it at some point.”

Here’s a look at some worst-case scenarios and how they would be handled under current law.

What happens if a presidential or vice presidential nominee dies before Election Day?

The national parties would replace the candidates. Both the Republican and Democratic National Committees have rules to address this situation.

Has this ever happened?

Yes, in 1912, Republican President William Howard Taft’s vice president, James S. Sherman, died six days before the election. Sherman’s name remained on the ballot.

After the election, the Republican National Committee replaced Sherman with Nicholas M. Butler. Republicans won only eight Electoral College votes during Democrat Woodrow Wilson’s landslide victory.

What if the president-elect dies before the Electoral College votes?

“It would still be theoretically in the hands of the national committees,” said Walter Berns, author of “After the People Vote,” a study of post-election issues.

Sherman’s bill recommends that the parties name stand-by candidates at their nominating conventions.

But members of the Electoral College are chosen by the parties, Berns said, and these “independent actors” may not like the replacement candidates.

Some scholars have theorized that electors could vote for a deceased candidate and thus immediately kick in succession laws, bumping the vice president into the presidency. But, in 1872, when a few electors cast votes for a dead candidate who had lost the popular vote, Congress declined to count those votes.

This period between Election Day and Inauguration Day is “an ambiguity in the succession law,” Baird said. At issue is whether a candidate becomes “president-elect” after the popular vote or after the Electoral College votes – Dec. 15 this year.

What if the president-elect dies after the Electoral College vote but before inauguration?

The 20th Amendment to the Constitution, ratified in 1933, is clear: “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President.”

What if the president and vice president die after taking the oaths of office on Inauguration Day?

Next in the line of succession is the Speaker of the House, then the President pro tempore of the Senate and Cabinet secretaries in this order: State, Treasury, Defense, and Attorney General, through Secretary of Homeland Security.

One problem: A new president usually does not have his Cabinet assembled until after the swearing in and outgoing Cabinet members often have resigned, leaving several positions in the line of succession vacant.

To remedy this, Sherman suggests an outgoing president consider acting on behalf of the next president and submit names to the Senate in December to get early confirmation of the new president’s Cabinet.

“We haven’t found any case of a person being confirmed before a president was sworn in,” said Donald A. Ritchie, associate Senate historian.

By keeping holdover Cabinet officials, a president can ensure there is someone to lead the government if the president, vice president, House Speaker and President pro tempore all die at the inaugural ceremony.

President George H.W. Bush was the last president to keep part of his predecessor’s Cabinet. Three of Ronald Reagan’s appointees stayed on in Bush’s Cabinet. Bush had been Reagan’s vice president.

The Senate has a track record of confirming the core Cabinet quickly. Except for Reagan, who had only his Defense secretary confirmed on Inauguration Day, each president since Jimmy Carter has had at least three Cabinet officials confirmed on Inauguration Day, according to the Senate historian’s office

Sherman’s bill would add five ambassadors to the line of succession – under the theory that they would be located safely outside the capital region in case of an attack on the United States. They are the ambassadors to the United Nations, Great Britain, Russia, China and France.

Hess called such legislation “bad policy” since ambassadors, often generous political donors and friends of the president, “haven’t been chosen for their executive skill.”

Sherman argued that a diplomat as president is better than no president at all. He said his legislation is needed to deal with crises that could befall the country.

“John Wilkes Booth not only assassinated (President) Lincoln. He had a plot to kill the vice president and secretary of state as well. I don’t think Bin Laden is any less ambitious,” Sherman said.