The line of succession and incapacity

[Ferguson97]

In the following scenario, where a terrorist attack during the State of the Union kills the President, Vice President, Speaker, Senate pro tempore, and all of the cabinet, except for the Secretary of State, who is in a coma.

The designated survivor is the Secretary of Education.

The Secretary of State is ahead of the Secretary of Education in the line of succession. And the State Secretary isn't dead, they're just incapacitated.

But you can't invoke the 25th amendment since the cabinet is dead.

Who is legally the President of the United States in this scenario? 

[dead0man]

Sec. of Education because the Sec. of State is incapacitated.

But you can't invoke the 25th amendment since the cabinet is dead.

the cabinet isn't dead, the Sec. of State and Education are alive

hopefully the top generals at the Pentagon are good, competent people and not bad or incompetent in such a scenario.

[politicallefty]

Sec. of Education because the Sec. of State is incapacitated.

But you can't invoke the 25th amendment since the cabinet is dead.

the cabinet isn't dead, the Sec. of State and Education are alive

hopefully the top generals at the Pentagon are good, competent people and not bad or incompetent in such a scenario.

That's how I read the law as well. The law governing this process is the Presidential Succession Act of 1947. Under its terms, the Secretary of State would be unable to serve as President. Therefore, the Secretary of Education would be entitled to serve for the duration of the term (at least until Congress reconstituted itself and elected a Speaker of the House and/or President Pro Tem of the Senate). From my understanding of the law, a higher Cabinet Secretary cannot bump a lower one from acting as President:

(d)(2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) or the ability to qualify on the part of an individual higher on such list shall not terminate his service.

Maybe I'm reading it wrong or misunderstanding, but I read that to disallow a higher Cabinet member to bump a lower one once they're able to serve. In this example, a recovered Secretary of State would not be able to claim the acting Presidency. The only individuals that are able to bump someone are the Vice President, Speaker of the House, and President Pro Tem of the Senate.

[Ferguson97]

Sec. of Education because the Sec. of State is incapacitated.

But you can't invoke the 25th amendment since the cabinet is dead.

the cabinet isn't dead, the Sec. of State and Education are alive

hopefully the top generals at the Pentagon are good, competent people and not bad or incompetent in such a scenario.

Does the Sec of State become President if they emerge from their coma?

[dead0man]

Sec. of Education because the Sec. of State is incapacitated.

But you can't invoke the 25th amendment since the cabinet is dead.

the cabinet isn't dead, the Sec. of State and Education are alive

hopefully the top generals at the Pentagon are good, competent people and not bad or incompetent in such a scenario.

Does the Sec of State become President if they emerge from their coma?

most people coming out of a coma caused by traumatic injuries are not going to be in good enough shape to run a superpower in grave turmoil.  By the time they are healthy enough, something else will have been figured out.  If this is just a local event, the 50 states will figure out how to redo sh**t fairly quickly.  But I'm an optimist.  But but we have become so partisan these last few years, I'm a lot less certain when it comes to this kind of thing lately.

[politicallefty]

Sec. of Education because the Sec. of State is incapacitated.

But you can't invoke the 25th amendment since the cabinet is dead.

the cabinet isn't dead, the Sec. of State and Education are alive

hopefully the top generals at the Pentagon are good, competent people and not bad or incompetent in such a scenario.

Does the Sec of State become President if they emerge from their coma?

No.

[Vosem]

Here is a recent hearing on the Presidential Succession Act. Note that per Congress's current interpretation:

Under the 1947 act any person serving as acting President can be supplanted or bumped from the acting presidency by an officer higher in the order of succession.

Your question should not matter, because the remaining living members of the House of Representatives will elect a Speaker and that person will become the new President for the duration of the term, regardless of whether the Secretary of State or Education is theoretically President between the terrorist attack and the election of the new Speaker. If there are emergency measures that need to be taken, then presumably as a practical matter the designated survivor would be interpreted to be 'Acting President'.

If there is a difference in political parties then the whole thing may come down to SCOTUS, because there is a strong case that including legislative officers in the line of succession violates the separation of powers. In that case it may be the Secretary of Education who becomes President; I don't think it would actually be difficult to declare the position of Secretary of State vacant if its holder is permanently incapacitated. Just as a question of common law there is surely plenty of analogous precedent.

[Open Source Intelligence]

In the following scenario, where a terrorist attack during the State of the Union kills the President, Vice President, Speaker, Senate pro tempore, and all of the cabinet, except for the Secretary of State, who is in a coma.

The designated survivor is the Secretary of Education.

The Secretary of State is ahead of the Secretary of Education in the line of succession. And the State Secretary isn't dead, they're just incapacitated.

But you can't invoke the 25th amendment since the cabinet is dead.

Who is legally the President of the United States in this scenario?  

There's about a half dozen or so problems in current succession law that exist because no one has interest in fixing hypothetical problems until they become real. One you mention. Read the post-9/11 Continuity of Government commission reports.

Here is a recent hearing on the Presidential Succession Act. Note that per Congress's current interpretation:

Under the 1947 act any person serving as acting President can be supplanted or bumped from the acting presidency by an officer higher in the order of succession.

Your question should not matter, because the remaining living members of the House of Representatives will elect a Speaker and that person will become the new President for the duration of the term, regardless of whether the Secretary of State or Education is theoretically President between the terrorist attack and the election of the new Speaker.

That "recent hearing" you link to is from 2004.

It's hardly clear constitutionally if the Speaker is eligible to become President. I'd argue no personally. But the notion of bumping is a level of ridiculous higher. "Secretary of State Blinken was President for 2 weeks. The Senate met and nominated a new President Pro Tempore that became President for 3 days. Then the House met, elected a new Speaker, and that person is now President." That's hardly the way to respond to what in reality would be a huge crisis in this country of almost all the people in charge dead with the chaos of 3 or 4 Presidents inside a month.