Presidential Succession

[Emsworth]

Yes. The relevant provision of the Constitution is Article II, Section 1, Clause 6: "the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected." Nothing in this clause suggests that legislators may not be included in the line of succession.

However, the legislator must resign from Congress in order to become Acting President. Under Article I, Section 6, Clause 2, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

[Emsworth]

It's funny that you quote that, while saying 'yes' to the poll question. The text makes it clear that a federal legislator may not be an officer of the United States. "Officer of the United States," then, must not include members of the legislative branch.

Of course, I agree that legislators are not officers of the United States. But they are still officers (see Art. I, Sec. 2, Cl. 5, for example).

The original understanding seems to be that "officers" include all federal officials, whether executive, judicial, or legislative. Very soon after the Constitution was adopted, Congress inserted the President pro tempore and the Speaker into the line of succession. Apparently, James Madison objected on grounds similar to yours; however, this is merely the opinion of one man, and does not reflect the general understanding.

[Emsworth]

I think that A18's argument is fairly convincing. It would appear that members of Congress are not considered "officers" of any sort.

It may not be completely unworthy of mention that Article II, Section 2 seems to treat the phrases "officer" and "officer[] of the United States" as synonyms.

But there is a slight difficulty with this position. If "officer" always means "officer of the United States," then it would be unconstitutional for the Speaker to be a member of the House of Representatives. Article I, Section 2 states, "The House of Representatives shall chuse their Speaker and other Officers." This clearly implies that the Speaker is an officer; note the fact that the Constitution refers to "other Officers." But if the Speaker is an officer, he may not serve in the House of Representatives.

[Emsworth]

Consider some technical problems that may arise if we read it as the 'yes' votes desire. I am speaker of the House. The president dies while the vice presidency is vacant. I am now called to act as president. But in order to do so, presumably I must resign. At which point, I am no longer speaker of the House, and no longer entitled to act as president.

It might be argued that the Speaker does not become President, but merely becomes Acting President. The Constitution says that Congress may "declar[e] what Officer shall then act as President," not "declar[e] what Officer shall then become President." Thus, he would not be required to resign.

This is just a possible solution to the technicality you mention; I would have to agree that the Speaker is not an "officer" within the meaning of the succession clause.

[Emsworth]

In 1792, Congress passed a law placing the President pro tempore and the Speaker in the line of succession. In case anyone is interested, here is a transcript of part the House debate on the subject:

[December 22, 1791]

Mr. STURGES mentioned several objections to this section, which in his opinion rendered it unconstitutional; he could not find that the Speaker of the House or the President of the Senate pro tem were officers of the Government in the sense contemplated by the Constitution. [...]

Mr. STURGES then moved to strike out the words, "the President of the Senate pro tempore and the Speaker of the House of Representatives."

Mr. GILES stated that the reasons he conceived fully proved the unconstitutionality of the clause. The characters referred to he did not think were officers. If they had been considered as such, they would have been designated in the Constitution [...]

Mr. SEDGWICK [...] was surprised to hear the idea controverted, that the Speaker of the House, or the President of the Senate pro tem, is not an officer. In common parlance he was sure there was no difficulty in the matter.

Mr. GERRY observed, that some gentlemen had said that the Speaker is not an officer; but if he is not an officer, what is he? He then read a clause from the Constitution which says that the House shall choose their Speaker and other officers. [...]

Mr. WILLIAMSON was in favor of the motion for striking out both the characters. He observed, that the extensive construction of the meaning of the word officer, would render it proper to point out any person in the United States, whether connected with the Government or not, as a proper person to fill the vacancy contemplated.

The House later voted 32-22 in favor of an amendment replacing President pro tempore and the Speaker with the Secretary of State. However, the Senate disagreed with this amendment; the House restored the original version by a vote of 31-24.

(Source: Annals of Congress)

[Emsworth]

Now it is obviously clear that under even the most obtuse of interpretations of tjhe word “Officer” that the Chief Justice could be included in the line of succession... Thus, an argument against including legislators among “Officers” on the basis of separation of powers clearly doesn’t hold. 

Article I, Section 6, Clause 2 prescribes that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This establishes an absolute separation between the membership of the executive and the membership of the legislature. However, there is no corresponding provision establishing an absolute separation between the executive and the judiciary. Thus, John Jay served simultaneously as Chief Justice and Ambassador to England; John Marshall was simultaneously Chief Justice and Secretary of State. In a sense, the separation between the executive and judicial branches is weaker than the separation between the executive and legislative branches.

I think, therefore, that a separation of powers argument that prevents legislators but not judges from acting as President is perfectly legitimate.

The argument that members of Congress are not "officers" is extremely strong and convincing. It is reinforced by each of the following clauses:

Article I, Section 6, Clause 2 states: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This clause makes it perfectly clear that members of Congress hold neither "civil Office," nor "any Office under the United States."

Article II, Section 1, Clause 2 provides: "[N]o Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." This clause clearly distinguishes between persons holding offices, and senators and representatives.

Article II, Section 2, Clause 2 states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." Members of Congress are not appointed by the President; they cannot be included within the term "all other Officers of the United States."

Article II, Section 3 states that the President "shall Commission all the Officers of the United States." Members of Congress are not commissioned by the President; thus, it would follow that they are not officers of the United States.

But the single most convincing provision is Article VI, Clause 3. It provides: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." This clause makes it clear that, at both federal and state levels, legislators are considered members of one category, while executive and judicial officers are considered members of a different category. It would have been far more concise to simply refer to "legislative, executive, and judicial officers, both of the United States and of the several States"; but the Framers did not choose to do so. It would appear, then, that the term "officer" does not include a legislator of any kind.