Constitutional scholars offered a morbid series of worst-case scenarios that could disrupt the established presidential line of succession at Tuesday's joint hearing of the Senate Rules Committee and the Senate Judiciary Committee.
Senate Rules Chairman Trent Lott, R-Miss., acknowledged that the last time Congress passed legislation regarding the line of succession was in 1947, in response to the death of President Franklin Roosevelt.
"Since those 1947 hearings, no substantive legislation has been passed to deal with the gaps in the current presidential succession system, " he said.
Professor Akhil Reed Amar of Yale Law School, who specializes in constitutional law, argued that the current Presidential Succession Act is "a disastrous statute, an accident waiting to happen. It should be repealed and replaced."
Amar said the current act violates the Constitution, because the Constitution's succession clause provides for Congress to name an "officer" to act as president in an instance when neither the president nor the vice-president is able to serve.
"Officers," under the Constitution, are appointed officials such as Cabinet members and not elected members of the legislative body.
Amar, along with John C. Fortier of the American Enterprise Institute; M. Miller Baker, a lawyer with McDermott, Will & Emery; and Professor Howard Wasserman of Florida International University's College of Law said Congress should change the line of successors to include at least one selected by the president and approved by Congress.
The officeholder would receive regular briefings on activities in Washington, but the sole purpose of the job would be to assume the office in case of an attack on Washington. Therefore, the officeholder would have to live outside the Washington metropolitan area.
The worst of the worst-case scenarios involves an attack on the Capitol during a State of the Union speech, in which nearly every leader would be killed or disabled. The appointed officeholder, dubbed the "Assistant Vice President," would immediately assume the office.
Sen. Russell Feingold, D-Wis., expressed concern that the Senate was focusing too much energy on a multitude of "what-if" circumstances. "We shouldn't be putting too much attention to what is predominantly theoretical issues," Feingold said.
Senate Judiciary Constitution, Civil Rights and Property Rights Subcommittee Chairman John Cornyn, R-Texas, and Sen. Mike DeWine, R-Ohio, also expressed concern over Wasserman's suggestion to amend the current statute to provide for a presidential special election six months after an unforeseen attack.
"Special elections are a bad idea, " said DeWine. "The last thing we need in a time of crisis is uncertainty."
Lott indicated there will be more hearings regarding the presidential line of succession. "In the meantime," he joked, "I'll be discussing the line of succession with Vice President [Dick] Cheney, Speaker [Dennis] Hastert and Ted Stevens," who as the longest-serving member of the majority party is the president pro tem of the Senate.