A Secret in the Line of Succession

By Charles Babington
Washington Post Staff Writer
Monday, October 16, 2006

House Speaker J. Dennis Hastert (R-Ill.) shows no sign of resigning over the Mark Foley-House page scandal. But the mere suggestion that he might do so raises an intriguing political and constitutional question: Who would replace him while Congress is in recess?

The answer, it appears, is on a piece of paper locked away in the House clerk's office.

In a little-noticed action taken nearly four years ago, the House amended its rules dealing with the "continuity of Congress" in emergencies and the succession of speakers. The rule, cited recently in Roll Call, directs the speaker to "deliver to the Clerk a list of Members in the order in which each shall act as Speaker pro tempore . . . in the case of a vacancy in the office of Speaker."

Normally, "speaker pro tempore" is the title given for a few hours at a time to various members of the majority who preside over House sessions. But the rules revision made in January 2003, in response to worries about terrorist strikes that could wipe out large numbers of elected officials, appears to bestow upon a newly named replacement all the powers enjoyed by a full-time speaker elected by his peers.

That would include standing behind only the vice president in the line of presidential succession, said Sally Collins, spokeswoman for House administrators. But other House officials said it is extremely unlikely that a speaker pro tempore could assume the presidency before Congress would reconvene and elect a new speaker.

One thing is certain: The identity of the speaker-in-waiting is a closely held secret. Hastert's office declined to discuss the matter, citing security concerns, and the clerk's office confirmed only that Hastert's list is not made public.

Perhaps the biggest question, some lawyers say, is whether a House speaker -- full time or pro tempore -- can assume and keep the presidency under any circumstance. A statute, not the Constitution, lists the speaker's place in the line succession.

A case can be made that no one in Congress qualifies as an "officer" eligible to assume the presidency under Article II of the Constitution, said Neil Kinkopf, a professor of law at Georgia State University. The question may never be settled, he said, because the Supreme Court would take it up only if a speaker became president and someone challenged the action in court.

As for nightmarish constitutional what-ifs, Kinkopf said, "Imagine where the presidency falls not to the speaker, but to somebody on the speaker's secret list."

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