Senator SIMON. I thank you, Mr. Chairman. We appreciate it. STATEMENT OF PROFESSOR AKHIL REED AMAR Professor AMAR. Thank you, Mr. Chairman. It is a great honor to be with you here today. I agree that there is a problem in our current system. I characterize it in my written statement which I have provided as a time bomb that is ticking, and I believe that we can defuse it now with a simple statute that doesn't require the major mechanism of constitutional amendment. I agree, therefore, with Walter Dellinger and with the Chair, as I heard him, that Í don't think an amendment is necessary to solve these technical glitches in the succession scheme. My proposal, which is elaborated in much more detail in my written remarks, is based on an intuition and then two or three implementing suggestions for getting to that intuition, achieving it. Here is the intuition, and this tracks, I think, Senator Bayh's remarks, also. The people vote on election day and they think on election day that they have elected the next President and Vice President of the United States, and that electoral mandate from the people in this awesome, wonderful moment that I think shines out to the rest of the world when we the people of the United States peacefully elect our President and Vice President—that should, if at all possible, be respected. If the President were to die after inauguration, the Vice President would take over under the clear terms of the constitution, article II. If the President-elect were to die the day before the inauguration, the Vice President-elect takes over under the clear provisions of the 20th amendment, and my intuition is that same result, if possible, should be achieved all the way back through the process to election day. After election day, de facto, even if not technically within the meaning of the particular words "President-elect" of the 20th amendment de facto, we have in most situations a Presidentelect and a Vice President-elect, and if something happens, God forbid, to the person who won the election on election day, the most sensible solution, it seems to me, would be for the Vice Presidentelect to take over. That person really should be sworn in on election day. That is the intuition. If you don't share that intuition, then you won't like my proposals, but if you do share that intuition, then here is how I propose we get from here to there. We need to modify the timing of certain critical events. In particular, if a death occurs on the eve of the meeting of the electoral college, there is going to be rampant confusion, chaos, and time is needed, it seems to me, for everyone for the polity, for the parties, for the members of the electoral college to absorb the situation, to figure out what the rules are and what they should do. Therefore, I propose that Congress pass now, in advance, before the crisis arises, legislation as part of Title 3 that in the event of death-and I specify for major party candidates, and you could provide triggers for who would fall in that definition. It doesn't seem particularly sensible to do it for every minor candidate. The electoral college could be postponed a suitable time, a week or so, to allow the situation to be absorbed. This is, in fact, what was clearly suggested in the legislative history of the 20th amendment, to which Professor Dellinger referred both in his oral and his written remarks. They actually, when they looked at the 20th amendment, thought that that was a sensible thing to do. A second possible date modification I suggest is the election day itself. Prior to the election day, and this is the flip side of my intuition, we do not yet have, in effect, a President-elect and a Vice President-elect. The people have yet to speak. I believe, if possible, they deserve to speak with the utmost clarity that we can create in an election system, and I believe that they are entitled to speak with a clear menu of choices before them. If, God forbid, on the eve of election day a leading Presidential candidate were to die-and, again, we can specify what we mean so that not every minor candidate's death would trigger this-I believe the election should be postponed so that the parties can designate a new slate of candidates for the American people to pick on election day. The postponement could be for up to, say, 4 weeks if the death occurred literally the first Monday of November or something. If it occurs before Labor Day or before October 1st, no additional time would be necessary. We would have the time, I believe, to gear up a process of a new slate of nominees and an election that would clarify the issues. Senator SIMON. But that would require a constitutional amendment. Professor AMAR. I don't believe so. The idea of the first Tuesday in November is just provided for in Title 3 of the U.S. Code, and that date could easily be modified. The only date that really is fixed in the Constitution is January 20th, and the one concern that this does raise is the more you push back the election, the more difficult it is to have a transition, of course. So you are going to squeeze the transition, but, in my view, better a bumpy transition and perhaps an awkward honeymoon when the folks first are inaugurated than having the wrong people in office for four years. Let us give the American people, if possible, the chance to do it right on election day and pick the candidates. So, once again, this actually is in the legislative history of the 20th amendment, the suggestion that Congress by ordinary statute could push back the election day in the event of a death right before the election. So both of those things that, just by way of background, I kind of came up with by brainstorming and looking at the Constitution turn out, after I did a little bit more research, to have been things that were proposed in the official House report that Aaron Rapapport sent me for the 20th amendment. So those are two proposed suggestions. Now, here is the third, that the Greeley precedent from 1872-1873 is a bad one. The Greeley precedent, in effect, said Congress in counting the electoral votes won't count the votes for someone who is already dead. Along with Senator Bayh, I think that that decision was made sort of hastily and without a lot of forethought. Not a lot rode on it because Greeley only got three electoral votes; he wasn't going to win anyway. It seems to me perfectly legitimate as one, not the only but one option that the electors might pursue, the members of the electoral college, to vote for-let us say the candidate dies before the day before the electoral college meets. The electoral college meeting is postponed for 6 days, 7 days, and they continue to vote for the people who won the election, for the now dead Mr. Smith for President and his running mate, Ms. Jones. If Congress counts those votes, the practical result of that will be on inauguration day Jones will become President, which is what would have happened if Smith had died after inauguration, what would have happened if Smith had died after the electoral college votes were counted under the 20th amendment, which probably would be the case if Smith had died the day after the electoral college meets. I agree with Professor Dellinger that that is the clear intent of the 20th amendment. Its particular wording is not particularly clear on that, so there is some ambiguity about that time period after the electoral college has met and before the electoral college votes are counted. But here is the basic intuition of the 20th amendment. The basic intuition is, in effect, although it seems counter-intuitive, to swear in dead people. What the 20th amendment, in effect, says is on inauguration day swear in the fellow who is dead; one nano-second later, the Vice President will assume the office under the clear terms of article II and the 12th amendment. I am saying let us carry that intuition backwards all the way in time for the entire period when we really do have, de facto, in the minds of all American citizens, or most of them-and this was Senator Bayh's point-a President-elect. Let us carry that intuition all the way back to the Tuesday in November. After that Tuesday, let us treat that person, in effect, as a President-elect. If the electoral college chooses to vote for that person, Congress should count those votes, and what that will mean is that Jones will take over on inauguration day, which is what the American people, I think, thought they were voting for. Just to sum up the intuition and the idea one other way, I think the American people see all the other steps in the process after election day as procedural window dressing-inauguration gala balls and the swearing-in ceremony and the official ceremonial counting in the Congress and the meeting of the electoral college. They basically think that they voted for President and Vice President. They voted for Smith and Jones, and if Smith dies Jones is supposed to take over. That should be true regardless of the exact moment when Smith's heart stops beating, whether it is the day after inauguration, the day before, and I would take it all the way back if that is what the electors decide to do. The reason today that they wouldn't be able to do that is we have the Greeley precedent on the books, and so it wouldn't at all be clear to them that if they did that you all would count their votes, and if you all wouldn't count their votes, then the tremendous irony would be that the other fellow, the fellow that lost on election day, might be the only living person with Presidential electoral college votes that would be counted by this body, and that, it seems to me, would be a clear perversion of the will of the people as expressed on election day. So the intuition is Jones really is the person who should take over. The particular proposals have to do with pushing the dates backwards to eliminate confusion and chaos, and to allow the voting for and counting of votes for dead people seems counter-intuitive, but achieves the sensible result of the Vice President taking over. If I could just make three small additional points unrelated at the end, first, I don't believe that the Congressional Research Service proposal will cure the problem. It shortens the window. It actually tries to push everything in the other direction, change the days by moving things up, saying, well, if it is only 10 days rather than 41 days, it is 14 as likely that someone is going to die in that period. It tries to close the window of vulnerability, but it doesn't close it shut. As long as the window of vulnerability is open, we are going to have this problem. My further claim is, in closing it, but not all the way, it actually-to use the window metaphor, more cold air is going to come in with that. When you have less time to deliberate, only 10 days rather than 41 days, possibly-if the death occurs in that 10-day period, it is quite often going to occur right before the electoral college is going to meet. There is going to be chaos. People won't know exactly how to act and you are much more likely to get a split vote. So I actually don't think that the Congressional Research Service proposal can completely sort of cure this problem because it doesn't close the window shut. My second point has to do with a glitch in the 25th amendment, which is perhaps a little bit beyond the narrow purview. But if you are trying to clean up all of these problems, here is another one. The President under the 25th amendment becomes disabled. The Vice President under the 25th amendment triggers a disability initiation process and becomes acting President. Now, what happens if the Vice President becomes disabled? If he dies, no problem; the Presidential Succession Act kicks in the speaker of the House. If the President gets better, no problem; the acting President steps down and the President takes over. But if the President is disabled and the acting President is disabled, there is not even a mechanism that the 25th amendment clearly contemplates for doing anything about that. There is not a similar mechanism for initiating an inquiry into acting President disability as was provided for Presidential disability under the 25th amendment. So, that is just one completely unrelated point, but if you are trying to solve all these problems with a statute, there may be a statutory solution to that." My final point has to do again with Presidential succession after inauguration, and I mention this very briefly in my last footnote of my written remarks. Suppose one day after inauguration both the President and Vice President die. Under the Presidential Succession Act, the Speaker of the House, or next in line, becomes President. Ás Senator Bayh says, there is a real problem if those folks represent the party that was repudiated on election day. The people voted for one party and they are going to get, under the current scheme, for 4 years the other party. That is a legitimacy problem. I suggest in that footnote at the end of my remarks that that is not required by the Constitution in any way. The Constitution, in the event of double death, provides that Congress by statute may provide for an acting President until a President shall be elected. My point is we don't have to wait 4 years for the next Presidential election. We could have a special election after a suitable 3-month period. So we could have a caretaker President for 3 months in the event of double death. That was just my reading of the words of the Constitution. What I have since learned from some material, again, that Aaron Rapapport sent me is that that intuition of mine is powerfully confirmed by the history of this issue. In 1792, Congress passed a statute under article II to implement that double death scenario, and the statute provides for a special election, just a caretaker President and a special new Presidential election. That was the law from 1792 to 1886. Then in 1886 there was a new statute that said Congress could, but need not, provide for a special election in the event of double death, just a caretaker. That was the law until 1947, and in 1947 Harry Truman, who became President because of President Roosevelt's death and cared a lot about these issues, put on the agenda of this body the Presidential succession issue. For the first time, in 1947, the rule became that the person who took over was going to take over for the entire remainder of the term. President Truman himself thought that was wrong. He thought that that person wouldn't have sufficient democratic legitimacy because no one in America had voted for that person. Indeed, they might have voted against that party. So those are unrelated to the narrow time frame that we have been talking about, but I just wanted to mention those issues as well. Thank you very much. [The prepared statement of Professor Amar follows:] PREPARED STATEMENT OF AKHIL REED AMAR 1 Death and taxes are taboo. Talk about taxes is bad politics, and talk about death is bad form. But for the sake of our children and grandchildren, if not ourselves, we must talk about, and sometimes must raise, taxes. And we must also talk-and talk now-about death and presidential succession. For our current legal regime is a constitutional accident waiting to happen-a future crisis that is both thoroughly predictable and easily avoidable through ordinary, nonpartisan legislation that can be enacted now, long before any crisis arises. In this essay, I shall sketch out what I see as the problem, and the nonpartisan legislative solution I envision. I. THE PROBLEM It would probably surprise most thoughtful Americans, even those familiar with our Constitution, to learn that major glitches exist in our scheme of presidential succession. To detect these gaps, we must carefully examine the Constitution's provisions. The original Constitution, in Article II, provides that in the event of the president's "Removal, * ** Death, Resignation, or Inability" the "powers and Duties" of the president "shall devolve on the Vice President," whose election is provided for earlier in Article II. That Article goes on to empower Congress "by Law" to enact succession rules in the event of "Removal, Death, Resignation or Inability" of both the president and Vice president. (Congress has done so in 3 U.S.C. § 19, the presidential Succession Act.) Later constitutional amendments refine this succession scheme. After political parties emerged in the presidential elections of 1796 and 1800, Americans in 1804 adopted the Twelfth Amendment, which modifies the rules for electing presidents and Vice presidents in order to make it easier for a party to run a presidential/Vice presidential "ticket." Although the Twelfth Amendment nowhere requires Americans 1 Southmayd Professor, Yale Law School. |