Briefing for Biden Team Cites Presidential Succession Clinic Report

As President-elect Joseph R. Biden prepares to take office on January 20, 2021, recommendations from Fordham Law’s Presidential Succession Clinic are getting a look by the transition team. A report from the non-profit White House Transition Project highlights the clinic’s reform proposals related to the presidential line of succession and gaps in the procedures for presidential inability.

The White House Transition Project coordinates with government agencies to provide guidance to incoming executive branch officials. The group enlists scholars of the presidency to write briefing documents in the lead-up to every inauguration. Joel Goldstein, a top authority on the vice presidency and 25^th Amendment, authored the report that cites the Presidential Succession Clinic’s recommendations. The report also focuses on White House contingency plans for presidential succession that were in place during previous administrations. The plans were first posted online in Fordham Law’s 25^th Amendment Archive.

Revisiting the 25^th Amendment

The clinic, which met during the 2016-2017 academic year, involved 14 Fordham Law students developing reforms to the presidential succession system. Norris Professor of Law and Dean Emeritus John D. Feerick ’61 co-taught the clinic with John Rogan ’14. Shortly after graduating from Fordham Law School in 1961, Feerick played an instrumental role in developing the Constitution’s 25^th Amendment, which addresses presidential succession and inability scenarios.

“It’s essential for new generations of legal thinkers to build on the 25^th Amendment’s legacy. That’s exactly what the students in the Presidential Succession Clinic did,” said Feerick. “Their recommendations are the result of careful study and deliberation, and it’s terrific to see their contributions informing such high-level and important discussions about presidential succession planning.”

The Presidential Succession Clinic’s report published by the Fordham Law Review in December 2017 has previously been cited by the Congressional Research Service and in scholarly articles and books. Stories for The Atlantic, Lawfare, and Psychology Today have also mentioned the report. And students in a Yale Law School clinic that undertook a similar study of presidential succession relied on the work of their Fordham Law counterparts in their “Reader’s Guide” to the amendment.

Changing the Rules of Succession

Goldstein’s Transition Project report references recommendations from two of the six areas that the clinic analyzed. The first recommendation cited is the clinic’s call to remove lawmakers from the line of succession. High-ranking cabinet secretaries are better suited to serve as presidential successors than the speaker of the House and Senate president pro tempore, according to the clinic. The students’ conclusion is based on a variety of considerations, including the concern that having legislators as successors could lead to a disruptive change in party control of the White House.

Goldstein also notes the clinic’s proposal for addressing scenarios where the vice president is disabled or both the president and vice president are disabled. These scenarios are not covered by the current legal framework for the presidential succession. To address these gaps in the system, the clinic suggests that Congress pass a law mirroring the 25^th Amendment’s inability procedures. The proposal would allow the president and a majority of the Cabinet to declare the vice president unable to serve. In the event both the president and vice president are disabled, the next person in the line of succession after the vice president, currently the speaker of the House, could initiate a transfer of power with assent from a majority of the Cabinet.

Further Reading

The clinic’s report is far from the only resource on presidential succession that Fordham Law has to offer. The school has been a center of scholarship on the issue for decades since Feerick published his first article on the topic in the Fordham Law Review. Senator Birch Bayh, the 25^th Amendment’s principal sponsor said, “[T]here’s no place in the country that is such a wellspring of knowledge on the dual questions of vice-presidential vacancies and presidential disabilities.”

Here are some of Fordham Law’s expansive 25^th Amendment resources:

• John Feerick’s books and Fordham Law Review articles, including:
  • The Problem of Presidential Inability—Will Congress Ever Solve It? (Fordham Law Review, 1963)
  • The Vice-Presidency and the Problems of Presidential Succession and Inability (Fordham Law Review, 1964)
  • The Proposed Twenty-Fifth Amendment to the Constitution (Fordham Law Review, 1965)
  • “From Failing Hands: The Story of Presidential Succession” (Fordham University Press, 1965)
  • Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment (Fordham Law Review, 2010)
  • “The Twenty-Fifth Amendment: Its Complete History and Applications” (Third Edition) (Fordham University Press, 2013)
  • The Twenty-Fifth Amendment: A Personal Remembrance(Fordham Law Review, 2017)
  • The Twenty-Fifth Amendment—In The Words of Birch Bayh, Its Principal Author (Fordham Law Review, 2020)
• The Twenty-Fifth Amendment Archive: The Maloney Library’s online repository of scholarship, primary sources, and other resources related to presidential succession. Highlights include:
  • The 25^th Amendment’s legislative history and other congressional materials
  • Executive branch documents, including a contingency plans binder passed on through several administrations
  • John Feerick’s correspondence with lawmakers and others as he worked on the amendment
• Clinics that recommended presidential succession and inability reforms
  • First Presidential Succession Clinic’s Report: Ensuring the Stability of Presidential Succession in the Modern Era (Fordham Law Review, 2012)
  • Second Presidential Succession Clinic’s Report: Fifty Years After the Twenty-Fifth Amendment: Recommendations for Improving the Presidential Succession System (Fordham Law Review, 2017)
    • Overview of Recommendations
  • Democracy Clinic Report: Protecting Against an Unable President (2020)
• Symposia and other events
  • Symposium on the Vice Presidency (Fordham Law Review symposium) (1976)
  • Adequacy of the Presidential Succession System in the 21^st Century: Filling the Gaps and Clarifying the Ambiguities in Constitutional and Extraconstitutional Arrangements (Fordham Law Review symposium) (2010)
  • Marking the Fiftieth Anniversary of the 25^th Amendment (discussion between John Feerick and Joel Goldstein)
  • The First 50 Years of the 25^th Amendment (event co-sponsored with the ABA and Bipartisan Policy Center)
  • Continuity in the Presidency: Gaps and Solutions (Fordham Law Review symposium) (2017)
  • Celebrating the Impact of Senator Birch Bayh: A Lasting Legacy on the Constitution and Beyond (Fordham Law Review tribute) (2020)