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Sunday, September 11, 2016

Designated Survivor

I am intrigued by the new ABC show Designated Survivor (long trailer after the jump, premiere on Wednesday, 9/21), which shows the HUD Secretary (played by Keifer Sutherland, wearing a Cornell hoodie and glasses to show that he is an egghead and no Jack Bauer) becoming acting president (not president) when the Capitol is destroyed by a terrorist attack during the State of the Union address.

I am curious where the show goes. It would be interesting to see the process of reconstituting a government, especially Congress. It also would be interesting to see the process of the executive trying to do anything without a legislature (as opposed to a legislature that just will not do its job). I am not particularly interested watching a revenge fantasy a la 24 (this gut-reaction preview suggests it feints in the latter direction at times). Nor The West Wing without political legitimacy, a basic political drama.

Instead, I hope the show recognizes, and plays, the uniqueness of the premise. This is more than a political drama or even a political drama about an individual thrust into circumstances for which he may not be prepared and having to grow into the job (think Harry Truman). This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.

Around the 1:35 mark in the trailer, Sutherland is talking with a speechwriter played by Kal Penn. As the scene is shown here, Sutherland asks whether Penn thinks he should step down, Penn says "I do," and Sutherland responds that he may be right, but for the moment he is all they have. It is a good line, designed to show Sutherland's steely resolve to rise to the occasion. But the conversation undermines the show's premise or the intelligence of its characters. That is a conversation you have when there is a choice ("Sorry, A, but B would be a better president).  Who does Penn want Sutherland to step down in favor of? Or who does Penn believe Sutherland could step down in favor of? He is literally the only person on the planet legally authorized to wield the executive Power of the United States. Anyone else acting as president would do so contrary to law (put aside whether we would accept and retroactively ratify such actions). Sutherland's "For now, I'm all you've got" drives the point home. But the head WH speechwriter, someone who presumably knows something about how the government works, already should know that.

Plus, the situation allows for depictions of genuine political intrigue that at least merit discussion, rather than ginned-up stories of Machiavellian chiefs of staff. Suppose one member of the House (not the Speaker) survived the attack, declared himself elected as Speaker by a majority vote of one member, and tried to argue that he had prior authority to act as president (raising some quorum concerns that have never been resolved). Or suppose the duly elected Speaker of a reconstituted House insists he has prior entitlement. Section 19(d)(2) (providing, in a convoluted fashion, that a cabinet member acting as president cannot be supplanted by a legislative officer acting as president) seems to resolve that, but this is all new ground and arguments always can be made. The show also could depict the holes commentators and advocates (including me) have identified in the succession statute, especially post-9/11: The absence of a mechanism to quickly reconstitute the House; the need for a special presidential election when an unknown, inexperienced, lower-level cabinet secretary (who may have been fired that morning) takes the executive power. But I doubt this creates enough drama compared with Jack-Bauer-in-glasses-and-a-Cornell-hoodie.

Finally, I never looked into the designated survivor practices when I was writing about this, so I was not aware of a paradox, in terms of political legitimacy. The highest cabinet officer ever to be the designated survivor has been the Attorney General on three occasions (John Ashcroft, Alberto Gonzales, and Eric Holder), which is fourth on the cabinet list. Secretaries of State, Treasury, and Defense are never designated, even though they are the highest-profile and most likely to have political, and even presidential, experience (of the last four Secretaries of State, two had run for president and one was a top military official who everyone had wanted to run for president) that would be important in the event of a catastrophe.

Anyway, I look  forward to beginning to watch this. I hope they do something good with it.


Posted by Howard Wasserman on September 11, 2016 at 07:39 AM in Culture, Howard Wasserman, Law and Politics, Television | Permalink


Designated Survivor is one of my favorite shows to be watching this fall. In episode #5 "The mission" at the end is the casket of the killed Navy SEAL. Here's the thing, the U.S. Flag draping the casket is incorrectly placed on the casket. The blue field should be over the left shoulder of the person in the casket. Anyone that has ever been on the Honor Guard knows that, almost all funeral directors know that. Isn't someone in charge of checking details like how to put the flag on the casket? Great show, but I just had to say something regarding the flag.

Former Honor Guard member and retired Air Force.

Posted by: Tom Hokenson | Nov 2, 2016 7:55:00 AM

Hopefully, the first episode is about him wrangling a spending bill to repair the capitol building. The people hate him for raising taxes, and the surviving opposing member of congress channels his/her inner Jackie Kennedy and yells, "Leave the capitol building like it is so the world can see what they've done." And the people love the member of congress, leading to a paralysis of re-forming the government.

Posted by: YesterdayIKilledAMammoth | Sep 13, 2016 4:48:03 PM

Steve: And that is what I am hoping the show will focus on, rather than a typical political drama/hero story of the ordinary man rising to the occasion.

Ordinary men fix cars, teach high school, and sell insurance. If he's a cabinet secretary, he's likely non-ordinary in some way (and, one hopes, the right ways).

Members of Congress tend to strike one as being idiot-savants: people who know how to work a room, raise money, run publicity campaigns, and (after they leave office) hustle their contacts for favors. Jerry Springer (once Mayor of Cincinnati) said he left politics because "I didn't want to do it as a career; when you're doing it to put bread on the table, you'll say anything; these guys haven't practiced law for 25 years; they'd be incompetent; they go into lobbying when they leave office because that's what they know"). Members of Congress are commonly non-ordinary. And not in ways that are terribly pleasant or impressive. (Ted Cruz being an exception, as is Rand Paul, as was Daniel Patrick Moynihan).

Posted by: Art Deco | Sep 13, 2016 4:03:48 PM

So, that would take more time. How much is unclear.

One of the more recent by-elections for Congress in New York took 5 months from beginning to end.

Posted by: Art Deco | Sep 13, 2016 3:51:23 PM

That would leave the Senate.

"When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”

So, that would take more time. How much is unclear. But, if you have a few senators (who can confirm, e.g., Supreme Court justices) and someone in the House (in an emergency, might be possible for state law to rush elections), you do have the beginning of a functional Congress.

Posted by: Joe | Sep 13, 2016 11:28:53 AM

Not in the House.

Posted by: Howard Wasserman | Sep 13, 2016 11:15:08 AM

One thing to note here is that multiple vacancies in Congress should be able to be filled fairly fast -- same day? -- depending on state law.

Posted by: Joe | Sep 13, 2016 11:12:07 AM

Steve: And that is what I am hoping the show will focus on, rather than a typical political drama/hero story of the ordinary man rising to the occasion.

Posted by: Howard Wasserman | Sep 12, 2016 10:43:08 PM

At the end of season 2 of the shows The Last Ship, Jeff Michener, the former US Secretary of Housing and Urban Development, was the sole surviving member of the Cabinet of the US and Presidential Line of Succession (due to a virus that wiped out almost everyone) which makes him the next President (he was something like 13th down the line from the Vice President).

Posted by: JLT | Sep 12, 2016 8:04:08 PM

That might be the movie I'm thinking of specifically. Thanks.

The Wikipedia page, btw, provides some more detail, including reference to one or more surviving members of Congress. This includes a "designated" survivor.


The fact one is played by Virginia Madsen, who I like as an actress, is promising.

Posted by: Joe | Sep 12, 2016 10:17:38 AM

The movie to which Joe may be referring is By Dawn's Early Light, much of the premise of which is a fight between the Secretary of the Interior (who thinks he's the President) and the actual President (who survived a helicopter crash that most thought had killed him) over how to conduct a nuclear war with Russia. :-)

But to Howard's broader point, I think the better fictional treatment of the issue is in Tom Clancy's Executive Orders, which is less about a designated survivor (if one accepts that Jack Ryan became Vice President before being sworn in), and more about governing without / reconstituting Congress (and the Supreme Court).

Posted by: Steve Vladeck | Sep 12, 2016 9:00:43 AM

There already was a show about what happens when the entire government is wiped out, except for one random member of the cabinet who then becomes President. Does nobody remember Battlestar Galactica?

Posted by: Derek Tokaz | Sep 12, 2016 6:06:01 AM

Congressional succession is itself a puzzle. The current House rule uses a denominator of "Representatives chosen, sworn, and living," although the constitutional quorum provision, in light of historical practice, is ambiguous. The House Rules now have a provision for a "provisional" number when the absence of a quorum is due to "catastrophic circumstances." So it seems that the lone Rep could make himself Speaker and give himself priority. It would be interesting to see it explored.

Posted by: Howard Wasserman | Sep 11, 2016 5:11:56 PM

This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.

It's a reasonable wager that the civil service and the military will still be extant, as well as the subcabinet officers.

The states have provisions for holding special elections. Congress could be reconstituted within six months. The state governors can appoint a Senate on short notice.

You can make amendments to the succession law. Remove from the succession the Speaker and the President pro tem of the Senate (he's usually about 90 years old, so it's only prudent) and add the line administrators among the undersecretaries, assistant secretaries, and federal bureau chiefs.

You could have a constitutional amendment which would allow the state legislatures to elect a new president. Of course, the last time Congress proposed an Amendment regarding the presidency, you got the 25th Amendment, which delineates a set of procedures one might wager will generate irresoluble tangles.

Or, you might just have the president mail the bloody SOU address to Congress, which is what every president between 1801 and 1913 did. Or tell the cabinet and the Supreme Court to stay home.

Posted by: Art Deco | Sep 11, 2016 3:26:20 PM

Anyway, I recall at least one -- probably have been more than one -- film with a somewhat comparable plot -- some minor Cabinet member is acting President.

Also, Keifer Sutherland might not be his "24" character here, but pretty sure that will come to mind for many people. I rather someone else in the role myself. I don't know the nature of his character, but his past roles alone make him seem instinctively as presidential stock. I would have chosen someone (be it a younger woman or otherwise) who would have a more difficult time.

Kal Penn actually would be an interesting choice there.

Posted by: Joe | Sep 11, 2016 11:07:32 AM

The "designated survivor" given the current line of succession seems to me to deal with a very narrow possibility.

The Speaker of the House is fourth in line. Next comes the Senate President Pro Tempore. It's possible neither will be available (an episode of "Madam Secretary" set up a scenario to make her acting President that involved some doing), true, but it's fairly unlikely. Some minor Cabinet Secretary being handed the reins because, e.g., a Paul Ryan feels he cannot take the job to me is also unlikely. Possible, of course.

The easiest scenario is to have one dead or physically unfit & another not a natural born citizen or something. Take the scenario apparently portrayed on the show. If there is ONE surviving senator, wouldn't that senator be by default the "Senate President Pro Tempore"? As suggested, one member of the House can in theory vote him or herself speaker. A majority of members is a quorum. There is no minimum number otherwise.

The caption in the video is arguably misleading because it doesn't reference that the next in line are members of Congress. It is arguably as important here to have a "designated survivor" for Congress. I'd also note that given current practice, many members of the Supreme Court also probably died.

Posted by: Joe | Sep 11, 2016 10:59:03 AM

My understanding is that the show does have one member of Congress (of the opposing party) surviving as well.

Posted by: Adam | Sep 11, 2016 10:15:37 AM

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