President Condoleezza Rice? Guarding against Problems on Jan. 20

[WSJ_law_blog]

On Jan. 20, 1989, U.S. leaders congregated on the Capitol steps, during President George H.W. Bush’s inauguration. Pictured: President Bush, Vice President Dan Quayle, House Speaker Jim Wright, Senate President Pro Tem Robert Byrd (behind Bob Dole). Photo: George Bush Presidential Library Museum

In a WSJ article on Thursday, we asked the question: What would happen if catastrophe struck at the Capitol steps at 12 noon on Jan. 20, just as an outgoing President Bush were handing the baton to an incoming President Obama? Admittedly, the possibility of such an incident is extremely remote, and heaven forbid that it’s ever something our country has to face. But a bi-partisan commission made of former senators, constitutional law scholars and D.C. area think-tankers, in a post 9/11 world, says it’s something we need to be ready for and guard against. (Click here for the story, which details other non-Inauguration Day related problems with our succession laws; and here for the video nutshelling the issue.)

The problem, as the American Enterprise Institute’s John Fortier and Norm Ornstein (among others) see it, largely lies with the logistics of the moment itself. It’s commonly known that in the event a president is killed or incapacitated, the vice president takes over. The Presidential Succession Act of 1947 lays out the chain of succession from there: the Speaker of the House, followed by the President Pro Tem of the Senate, the Secretary of State, the Secretary of the Treasury, and on down through the cabinet.

Inauguration Day sets out potential problems, though. For starters, as the picture above illustrates, many of the country’s leaders congregate in a very small (though well-protected) space. Secondly, the cabinet is often in disarray around the time of Inauguration Day: most of the outgoing president’s members have resigned, while the incoming president’s picks have yet to be appointed or confirmed by the Senate. As Fortier has written: “Inauguration is the most vulnerable time for the government, when the mechanisms for providing an orderly transfer of power to a presidential successor threaten to break down.”

Typically, the government guards against a power breakdown by keeping a cabinet member or two in place from the previous administration until the Senate can confirm the incoming president’s choices. But were the unthinkable to happen, one of these holdovers (say, current cabinet members Condoleezza Rice or Henry Paulson) would ascend to the presidency — an office they would hold for the next four years. Given the results of the recent election, this would certainly be a strange outcome indeed.

To avoid that bizarre course, the commission led by Ornstein and Fortier — called the Continuity of Government Commission — is urging the government to take certain steps in advance of Inauguration Day. Ornstein, for instance, recommends having certain Bush Administration cabinet members resign at 8 a.m. on Jan. 20. Before Obama is sworn in, Bush would nominate — and the Senate would confirm — a handful of Obama’s choices.

Will this happen? It’s hard to tell. “But both sides have so far been very cooperative,” says Ornstein. “We’re very hopeful.”