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‘The West Wing’ and Presidential Succession: Fact or Fiction?

“The West Wing” opens its season tonight without its creator, Aaron Sorkin, but with John Goodman having replaced Martin Sheen in the Oval Office. Last year’s season finale took viewers deep into the obscure corners of our presidential succession system, ending with a Republican House Speaker (Goodman) taking over for an incapacitated Democratic President Jed Bartlet (Sheen). Did the show’s writers faithfully represent the intricacies of presidential succession? And what can we expect tonight?

First, a recap. Toward the end of last season, Vice President John Hoynes resigns after it was learned that he was romantically linked and providing state secrets to a Washington socialite, and she was on the verge of publishing a tell-all book. Then Qumari terrorists kidnap President Bartlet’s daughter Zoey from a nightclub party following her Georgetown graduation. Under great mental strain, the president is clearly not himself as he stumbles in a number of critical decisions, and he comes to the conclusion that he could not make the best decisions for the nation if faced with a choice between daughter and country. He consults with his Cabinet and aides and decides to “invoke the 25th Amendment,” declaring himself temporarily incapacitated and allowing a successor to take over until he is recovered. The twist is that because there is no vice president, his successor is Speaker Glen Walken, who is Bartlet’s chief political opponent. The season finale ends with Walken resigning as Speaker and taking the presidential oath in the Oval Office.

Did “The West Wing” get presidential succession right? More or less, yes. Here’s a look:

• Vice presidential vacancy: By having the vice president resign, the writers paved the way for a scenario that the United States is fortunate never to have faced: the simultaneous vacancy of both the presidency and vice presidency. The transfer of power from a president to a vice president, even in cases of temporary disability, is fairly straightforward. But when there is no vice president, things get messy. Next in line is the Speaker, who, in modern history, has often been of the opposite party as the president. Also, a Speaker must resign from that post and his or her seat in Congress to assume the presidency, even temporarily.

• The president declares himself incapacitated: After consulting his Cabinet, Bartlet tells his staff that he is “invoking the 25th Amendment.” It is true that the 25th Amendment allows a president to turn over the presidency temporarily to the vice president, such as in the case of minor surgery requiring anesthesia. But in this case, there is no vice president, so technically the 25th Amendment does not apply. Instead, the Presidential Succession Act applies, and while it covers the case of incapacitation, it does not provide any details as to how a president declares incapacitation or resumes office when there is no longer any incapacity. On “The West Wing,” Bartlet prepared two letters, one declaring himself incapacitated and the other that he is well and resuming the presidency. He signs the first one and keeps the other in reserve for when he is well enough to be president again. These letters follow the procedures of the 25th Amendment, but remember, because there is no vice president, no law requires these letters.

• Does mental anguish or a conflict of interest qualify as incapacitation: Incapacitation is not defined in either the 25th Amendment or the Presidential Succession Act. The legislative history of the 25th Amendment makes it clear that incapacitation was primarily intended to cover physical and mental ailments, but ultimately a president is the one who determines his or her own incapacity. Along these lines, several legal scholars suggested that then-President Bill Clinton should have invoked this provision in 1998 to step aside until the cloud of impeachment had lifted. The bottom line is that if Bartlet believes himself to be incapacitated, he may step aside.

What can we expect?

There is an underlying conflict that will drive the plotline. An acting president such as Speaker Walken possesses all of the powers of the presidency, but the incapacitated Bartlet has the right to come back into office at any time he feels able. Walken would act as commander in chief and could initiate some military action even without the approval of Congress. He could fire all of the White House staff and the Cabinet. But any time that Bartlet felt that his actions had gone too far, Bartlet could sign the letter that declares himself able, and he would resume the presidency.

• Conflict over President Bartlet coming back: Because there is no vice president, acting President Walken could argue that Bartlet could not come back to office at all (a bit of a stretch, although some legal scholars in the past held this view) or that Bartlet was not well enough to make the decision to return. In the latter case, the 25th Amendment has a provision for the vice president and majority of the Cabinet to make the decision that the president is unfit to perform the duties of the office. In the case of a dispute, Congress resolves it. But as there is no vice president, there is no clear answer. Would the Supreme Court step in? Or Congress?

• Nomination of a new vice president. Acting President Walken has all of the powers of the presidency, including the power to nominate a new vice president, who would take office with the consent of the House and the Senate. If he did so, things would get muddled.

First, a new vice president would probably displace Walken himself and become acting president, leaving Walken with no job. This new vice president would remain in office as vice president even if Bartlet returned to the presidency. Second, in a complicated maneuver, Walken could nominate himself to be vice president. This would give him a more permanent position. It would also allow him to challenge Bartlet’s return. As vice president, he could attempt to get a majority of the Cabinet (whom he could appoint with Senate confirmation) to declare that Bartlet was incapacitated, and if Bartlet disagreed, then he could ask Congress to decide, by a two-thirds vote, that Bartlet was incapacitated and that Walken should continue to act as president.

Odds are that Aaron Sorkin will not return to his job, but will Martin Sheen? And how? Tonight will begin a season to answer those questions.

John C. Fortier is executive director of the Continuity of Government Commission at the American Enterprise Institute.

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