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Ask a Constitutional expert: How does the ‘Designated Survivor’ actually work?
One recurring plot on ABC’s “Designated Survivor” involves somebody complaining that President Kirkman (Kiefer Sutherland) isn’t qualified to be President, and clever-ish maneuvering to prove them wrong ensues.
Kirkman assumed the presidency after somebody blew up the Capitol during the State of the Union address, wiping out the president, vice president, Supreme Court, Congress and all the other members of the Cabinet — except himself.
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In the first episode, Kirkman’s eventual press secretary, Seth (Kal Penn) accidentally tells Kirkman he’s unfit for the job and should step aside. In later episodes, Kirkman’s authority is challenged by military leaders, governors and the congressional designated survivor. But just who do these geniuses think is able to do the job?
After all, everyone else named in the Presidential Succession Act of 1947 is dead. So if Kirkman, the sole surviving Cabinet member, shouldn’t be president, who does the country even want? The nearest purported billionaire?
Screener called up of a couple lawyers and professors to try to untangle the mess that is American democracy on your television screen… At least in terms of scripted drama. For now, reality TV is beyond the scope of our questioning. Here’s what we discovered.
1. Kirkman is probably not really the real president
Believe it or not, the laws of presidential succession are not super clear — and Congress has not been terribly eager to spell things out. Beyond the vice presidency, who becomes president in an emergency — and how long they get to be president — isn’t a simple matter.
It comes down to whether those south of VP become POTUS, or acting president in a crisis. If they’re only acting president, it gets even more complicated, because the acting president can get bumped by new people.
Norm Ornstein, who sounded the alarm about continuity of government more than a decade ago through his work at the American Enterprise Institute, said in an email that the Presidential Succession Act is poorly worded. Under Ornstein’s interpretation, Kirkman is only “acting” president. That means if Congress reconstitutes and picks a new Speaker of the House, Kirkman could be bumped from his job.
Vikram Amar, dean of the University of Illinois College of Law, agreed the acting president’s position is fragile. While it’s clear under the circumstances described on the show that Kirkman would be entitled to be acting president, it’s not clear how long that would last.
But according to Amar, it’s not about finding a permanent office-holder.
“We don’t care about occupancy. We care about the sequence that’s prescribed by law,” Amar said. That means the new Speaker could bump Kirkman.
Apply the same reasoning to the role of vice president, and things get really scary for the show: if the new Congress picks a new vice president (who is even higher on the list of presidential succession than the Speaker), then Kirkman could lose the presidency. And who is being considered for vice president? Only the guy the FBI is now secretly investigating as a possible colluder in the attack on the Capitol, Peter MacLeish (Ashley Zukerman). Yikes!
2. Martial law is unconstitutional and all, but can we say CROSS-NETWORK CROSSOVER, BABY?
Martial law, where the constitution is suspended and the military takes over the country, isn’t specifically provided for in the Constitution… But if terrorists were to blow up the Capitol, that probably wouldn’t matter much.
There’s almost no scenario in which a Housing and Urban Development Secretary becomes president, despite his “designated survivor” status, according to Matt Warshauer, professor of History at Central Connecticut State College and author of “Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Liberties, and Partisanship.” He says martial law is actually much more likely.
The military takes over to “freeze things in time,” and from there, they’d work to reconstitute a government… Which is where things get interesting if you’re a TV fanatic who yearns for a real life “West Wing.”
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Warshauer says that rather than picking a lowly Cabinet member to run the free world, the military is more likely to bring in a known quantity: A past president, and his administration.
So there you have it: You now have a good excuse to start yelling, “BARTLET FOR AMERICA! BARTLET FOR AMERICA!” at your TV. If you maybe needed one.
“Designated Survivor” airs Wednesdays at 10 p.m. ET/PT on ABC.