The acting status of much of President Trump’s Cabinet has had one unintended consequence for the State of the Union: It limited the number of secretaries the White House could pick as the so-called “designated survivor” for the president’s address Tuesday night.
Legal and congressional experts, and former administration officials say the designated survivor — who would take over as president should an unspeakable catastrophe hit the Capitol and wipe out the country’s leaders — must be someone who has been confirmed to his or her position by the Senate.
That would, in theory, eliminate current Cabinet officials such as acting attorney general Matthew G. Whitaker, acting Defense Secretary Patrick Shanahan and acting Interior Secretary David Bernhardt, who are all serving on an interim basis, although Bernhardt was tapped for the job permanently on Monday.
“It has to be someone in the line of succession and acting people aren’t in the line of succession,” said Chris Lu, who served as Cabinet secretary in the Obama White House and helped select designated survivors for several speeches during that administration.
A White House official said Tuesday evening that Energy Secretary Rick Perry would serve as the designated survivor for Tuesday’s State of the Union, meaning he will be sequestered in a highly secretive location until Trump has safely returned to the White House after the speech.
The previous designated survivors during the Trump administration have been Agriculture Secretary Sonny Perdue last year and David Shulkin, the former secretary of Veterans Affairs, in 2017.
Acting Cabinet officials, of course, can still attend the State of the Union. Yet the interim leaders in those jobs will only underscore how much of his Cabinet remains without permanent, Senate-confirmed leaders. In addition to the attorney general job and secretaries of Defense and Interior, Trump’s Cabinet includes an acting Environmental Protection Agency director, Office of Management and Budget director as well as an acting White House chief of staff.
“All you have to do is go through the ranks of this Cabinet to see how many of those in the line of succession are absurd, if you’re thinking about a time of crisis when you need to have somebody who’s able to take on the job,” said Norm Ornstein, a resident scholar at the American Enterprise Institute
The unusually high number of acting Cabinet officials have prompted concern from Senate Republicans, who have urged the president to nominate permanent people to those positions and other lower-level vacancies throughout the administration. Still, Trump has not shared their urgency, saying in an interview with CBS News that he likes acting officials because “it gives me more flexibility.”
The Presidential Succession Act of 1947, which lays out the order of congressional and Cabinet officials who would assume the presidency should it be vacated, says those in the line of succession must be appointed “by and with the advice and consent of the Senate.”
“It’s crystal clear that to be in that line of succession, the Cabinet officer must be Senate-confirmed,” said Nina Mendelson, a professor of law at the University of Michigan. “A Cabinet officer who is merely ‘acting’ is legally barred from assuming presidential authority.”
Mendelson, however, noted that the law does not explicitly make clear whether the acting Cabinet official would be disqualified from the presidential line of succession if he or she had been confirmed by the Senate to another position. Shanahan and Bernhardt have been confirmed as deputy secretaries, but not to their current acting posts.
Various Supreme Court opinions — one from 1893 and another from 1994 — allowed for lower-level administration officials to bypass confirmation for a different government position because they had already been confirmed to a job with similar responsibilities, Mendelson said.
“Bottom line: The law here is not 100 percent clear, but it is very doubtful that Shanahan can legally act as President,” Mendelson said, using the acting Defense secretary as an example. “A Senate-confirmed Cabinet official should be designated to sit out the State of the Union.”
The 1947 law also notes that the line of succession would only apply to those who would be constitutionally eligible to serve as president. That means Elaine Chao, the current secretary of the Department of Transportation who was born in Taiwan, could not be the designated survivor since she is not a natural born citizen.
The tradition of a designated survivor is one that extends back to the Cold War era, when administrations began choosing one Cabinet member to sit out a major event due to concerns that the Soviet Union could annihilate the country’s leaders with one attack.
That Cabinet official, who is usually told of that responsibility several days in advance, is shuttled off to an undisclosed location secured by Secret Service and receives briefings about what would occur in case of emergency, served dinner and watches the speech. Once the president has returned to the White House, the designated survivor is relieved of his or her duties.
Lu, the former Obama official, said he considered several factors in choosing which Cabinet member would sit out a State of the Union or a similarly high-profile address at the Capitol. He would see whether any Cabinet official was already traveling around the speech and seeing if that secretary could get to a secure location wherever they were.
Lu would also examine the themes of Obama’s speech and try not to ask a Cabinet official whose policy areas would be featured to sit out the address. For instance, Lu recalled that he requested Eric Holder, then the attorney general, to serve as designated survivor for Obama’s February 2009 address to a joint session of Congress, which focused on Obama’s push to pass the economic stimulus bill.
He would also try not to ask a Cabinet official to sit out a speech more than once, and Lu said he wanted to showcase the gender diversity of the Obama Cabinet, so a woman did not serve as designated survivor during Obama’s speeches.