President . . . Mike Pompeo?

As I’ve been watching all the commotion of possible election chaos in November, and the various wild scenarios being played out involving military coups, or the ascension of Speaker Nancy Pelosi to the presidency on January 20 if the election is somehow not settled by then. I’ve been pondering one possibility that I’m surprised has drawn little attention. And it is quite relevant to the demands some Democrats apparently want to make that Amy Coney Barrett pledge to recuse herself from any election-related case that might reach the Supreme Court, as it did in 2000.

So let’s play this out. Never mind the problems of counting ballots and having disputed slates of electors from one or more states. Suppose instead the electoral college ended in a 269-269 tie (or some other tie, if disputed electors are rejected by Congress). This is possible from the various swing states in play this election. In the case of a tie, the Constitution specifies that the selection of the President is decided by the House of Representatives, each state having one vote. Right now this favors Republicans, as they control more state delegations to the House than Democrats do (26 to 23 with one tied), even though Democrats have an overall majority of total members. I expect the next House will be about the same as now, with Republicans controlling more state delegations.

That means Trump wins, right? Not so fast. Look closer at the key clause in Article II, Section 1 of the Constitution:

But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. [Emphasis added.]

If I understand this clause correctly, Democrats might be able to prevent the House from having a quorum to select the President by not showing up. [NB: It is not entirely clear what “member or members from two thirds of the states” means in practice: it could mean, for example, that if just one GOP House member from New York turned up, it would qualify that state toward a quorum, in which case Democrats can’t prevent a quorum.] And since Trump’s term in office expires at noon on January 20, then Speaker Pelosi would become president under the terms of the Presidential Succession Act of 1947.

Advantage Democrats? Not so fast. Let’s keep going in Article II, Section 1:

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and 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. [Emphasis added.]

Thus arises the serious constitutional question, rooted in the principle of the separation of powers, of whether the Speaker of the House is an “officer” under the Constitution. Elsewhere in the Constitution it is stipulated that members of Congress may not serve in any executive branch position. In other words, the placement of the Speaker in the line of succession in the Presidential Succession Act of 1947 is arguably unconstitutional. And while the terms of the President and Vice President expire at noon on January 20, that is not necessarily the case with cabinet members, whose terms of office are not specified or limited. Behold: President Mike Pompeo, since the Secretary of State is next in the executive branch line of succession.

One could imagine the Supreme Court having to decide this disputed question. And it wouldn’t do for the Supreme Court to deadlock 4-4 on such a vital issue. And note that such a case wouldn’t be deciding the election or any aspect of the vote count, but merely the constitutionality of a statute governing succession.

I’m not the first person to wonder about this remote but not impossible scenario. Harvard Law’s Jack Goldsmith and one of his students, Ben Miller-Gootnick, wrote about this issue several months ago on LawFare:

[T]here is a powerful (though not airtight) argument that the Succession Act’s placement of the speaker in the line of presidential succession (and after her, the president pro tempore of the Senate) is contrary to the Constitution’s Succession Clause. That clause states that only an “Officer” may succeed and act as president. Most of the pertinent commentary maintains that the term “Officer” here does not include members of Congress. If that is right, Pelosi could not constitutionally “act as President,” even though the statute says she can.

But who would decide the controversy? Imagine that Pelosi declares herself acting president after Trump and Pence become incapacitated. And imagine that, at the same time, Secretary of State Mike Pompeo (the executive officer next in line under the statute) declares himself acting president on the basis of a legal opinion from Attorney General William Barr proclaiming legislative succession to the presidency unconstitutional. How would the matter be resolved? The answer . . . is unclear. . . [T]he matter is genuinely contested and there is a powerful argument that legislative succession is unconstitutional.

There’s a lot more background in the whole article, including the irony that it was some liberal law professors, back when Newt Gingrich was Speaker, who disputed his place in the line of succession on separation of powers grounds. Like election-year Supreme Court appointments, we can expect a lot of people to switch places on this issue if it comes to pass.

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