President Michael Armacost?: The Continuity of Government after September 11

“President Michael Armacost” is a phrase with a familiar ring to it in the nation’s capital, for Armacost served ably as Brookings’ fifth president from 1995-2002. But Armacost might have become president not of Brookings, but of the United States. Had that happened, he would have needed all the leadership skills he had honed at the highest levels of U.S. foreign service—and perhaps more. For an Armacost presidency would have come about because of a catastrophic terrorist attack, combined with potentially disabling quirks in the U.S. presidential succession system.

The story begins on January 20, 1989, at the inauguration of the 41st president, George H. W. Bush. At noon on that day, President Ronald Reagan’s term expired, and Chief Justice William Rehnquist administered the oath of office to Bush. What if, during that ceremony, terrorists had flown a plane into the West front of the Capitol, where the inauguration ceremony was taking place, or set off a powerful bomb? The result would have been chaos. Any attack against U.S. political leadership is a threat to national security, but the 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.

President Bush and Vice President Dan Quayle were, of course, present at the ceremony. Next in line of succession were Speaker of the House Jim Wright and Senate President Pro Tempore Robert Byrd, both of whom attended the inauguration. A devastating terrorist attack would have killed all of them along with many members of Congress and several Supreme Court justices, including the chief justice.

So who would have been president? Next in line after the speaker and the president pro tem are the cabinet officers in the chronological order of the creation of their departments. But which cabinet? Because the attack came on Inauguration Day, George Bush had not yet nominated his cabinet. A several-hour interval always ensues between a new president’s taking office at noon and Senate confirmation of the cabinet.

So in the case of a calamitous attack at an inauguration, the new president would have no cabinet, and the presidency would pass to the cabinet members of the previous administration. A presidential term has a beginning and end defined by the Constitution. At noon on January 20, 1989, the terms of President Reagan and Vice President Bush ended. But the terms of cabinet members are not constitutionally limited. Cabinet members stay in office until they resign, die, are impeached and convicted, or are removed by a president. So any of Reagan’s cabinet members who had not resigned at noon would have remained in the line of succession. And in 1989, several additional wrinkles would have complicated still further the transfer of power from Reagan to Bush—highlighting yet again the difficulties in our presidential succession system. Three of Reagan’s cabinet members—Treasury Secretary Nicholas Brady, Attorney General Richard Thornburgh, and Education Secretary Lauro Cavazos—stayed on after his term ended, as Bush had asked them to serve in his new administration. Reagan’s other cabinet secretaries resigned at noon, leaving their departments in the hands of acting secretaries.

According to the Presidential Succession Act, an acting secretary of a department is in the line of succession as long as he or she has been confirmed by the Senate for some position. On January 20, 1989, at noon, Reagan’s secretary of state, George Shulz, had resigned, as had the number-two person in the State Department, John Whitehead. The number-three person at State, the undersecretary for political affairs, who became acting secretary of state, was Michael Armacost. As the secretary of state is first among the cabinet in the line of succession, Armacost would have become president of the United States.

After the Bush inauguration the Senate did not move expeditiously to confirm President Bush’s appointments to the cabinet. Typically, a president-elect makes his cabinet choices known to the Senate before the inauguration so that confirmation hearings can begin. Sometime after the inaugural ceremony, the new president submits formal nominations to the Senate, and the Senate comes in session late in the afternoon of the 20th to confirm the noncontroversial nominees. In 1989, with Republican George Bush replacing another Republican, Ronald Reagan, little sense of urgency attended the cabinet confirmations, as Republicans would occupy the offices before and after the switch. The Senate came in session on the afternoon of the 20th to accept the president’s nominations to the cabinet, but almost immediately adjourned until Wednesday, January 25, when it returned to hold confirmation votes. That year Armacost sat four heartbeats away from the presidency for five days until the Senate confirmed James Baker to be the next secretary of state.

Planning for the Inconceivable

Before September 11, a scenario like that I’ve been describing would have seemed far-fetched in the extreme. But the shattering events of that day have made it essential to consider matters once deemed almost inconceivable. That is the mission of the Continuity of Government Commission, run jointly by Brookings and the American Enterprise Institute—to study how the three branches of government could survive a catastrophic attack.

The commission held hearings last fall on the continuity of Congress. Its first report this past June highlighted the problems of a catastrophic attack that left numerous vacancies in Congress, and it proposed a constitutional amendment to allow temporary appointments in catastrophic circumstances to fill vacant seats in the House until special elections could be held. The commission is now looking at the presidential succession.

The good news is that most changes to the line of presidential succession can be made by statute rather than by amending the Constitution. But ensuring the presidential succession requires addressing several troublesome issues. First, all figures in the current line of succession work and reside in the metropolitan Washington area. In the nightmare scenario of a nuclear attack, everyone in the line of succession could be killed. Second, many constitutional scholars doubt that it is constitutional for the speaker of the House and the president pro tempore of the Senate to be in the line of succession at all, because they do not meet the constitutional definition of “Officers” of the United States. Third, regardless of its constitutionality, some analysts question the wisdom of putting the president pro tempore of the Senate in the line of succession, because this largely honorific post is traditionally held by the longest-serving senator of the majority party. Fourth, some observers suggest that congressional leaders of the president’s party should be in the line of succession; the current law allows for a switch in party control of the presidency if the speaker of the House or president pro tempore of the Senate belongs to a party different from the president’s. Fifth, the line of succession proceeds through the cabinet members in order of the dates of creation of the departments they head. While several of the most important departments are also the oldest, it may not make sense to rely simply on historical accident. Instead, it may be necessary to evaluate the line of succession taking into account the present circumstances of the cabinet departments. For example, should the secretary of the interior be ahead of the secretaries of commerce, energy, or education? Sixth, if the line of succession passes to a cabinet member, the law allows for the House of Representatives to elect a new speaker (or the Senate a new president pro tempore), who could bump the cabinet member and assume the presidency at any time. Finally, the Twenty-fifth Amendment provides for several instances of presidential disability when the vice president can act as president, but it does not cover circumstances when the president is disabled and the vice presidency is vacant. In this case, the Presidential Succession Act allows congressional leaders and cabinet officers to act as president for a short time, but only if they resign their posts.

Who Succeeds President Armacost?

Now to return to the story. If terrorists had attacked on January 20, 1989, and Michael Armacost had become president, what would have happened next? One quirk in the Presidential Succession Act is that Congress is given a privileged position over the cabinet members, so subsequently elected congressional leaders might “bump” a cabinet member who had assumed the presidency. It is not an accident. The United States has had three succession acts. The first was in effect until 1886 and had just the two congressional leaders, but no cabinet members, in the line. A second law that governed succession from 1886 to 1947 removed Congress and had just cabinet members in the line of succession. The current act owes its creation to Harry Truman, who came to the presidency after a few months as vice president and after a career in Congress. He believed strongly that a successor to the president should be an elected figure. He proposed, and Congress ultimately passed, a law that put congressional leaders back in the line of succession ahead of the cabinet. The law also specifies that if a cabinet member becomes president (meaning the president, vice president, speaker, and president pro tempore have perished), then once Congress elects a new speaker of the house or a new president pro tem, that congressional leader can “bump” the cabinet member and become president for the remainder of the term.

So an Armacost presidency would have lasted only until either the House or the Senate could have elected new leadership and one of those leaders could assume the presidency. But even this matter is not as straightforward as it might be. An inauguration ceremony is attended by most members of Congress. If a massive attack had hit the inauguration, many members would likely have been killed or incapacitated, and the House and Senate might well have had difficulty functioning. These problems of congressional continuity are addressed in detail in the commission’s first report, but a brief account of the difficulties will show how the questions of continuity of the presidency and of Congress are intricately intertwined.

For both the Senate and the House a quorum requirement is laid out in the Constitution, with a majority of members of each body constituting a quorum. By a literal interpretation of the Constitution, if fewer than 51 senators or 218 House members are alive, neither chamber would have a quorum and so neither would be able to conduct any business. Because they could thus not elect new leadership, Armacost would remain president until they could. The problem of continuity is more acute in the House. In the Senate, vacancies can be filled almost immediately by governors who can make temporary appointments that last until a state can hold a special election. In the House, the only way to fill vacancies is by holding a special election, which takes on average four months. Yet another problem for both the House and the Senate is incapacitated members. If numerous members were incapacitated but alive, say in burn units or infected with a contagious biological agent, there would be no method to replace them, and the House and Senate might not function until enough members recovered.

But even the quorum requirement is not as simple as its constitutional language would suggest, for House parliamentary rulings over the years have come down in favor of a more lenient standard—for a quorum to be a majority of the “living” members. In that case, a small group of remaining members could elect a speaker. In an extreme case, five members of the House survive and by a vote of three to two elect a speaker. The new speaker would bump President Armacost and serve for the nearly four years remaining in the term.

All these scenarios are complicated and of course highly unlikely. Surely another president of Brookings would never assume the presidency of the United States from a subcabinet position? Perhaps. But on January 19, 2001, when Madeleine Albright resigned her post as secretary of state, the number-two person at State at the time was Strobe Talbott. As it happened, Talbott too resigned. Had he not, he would have become acting secretary of state, and our story could have begun again.