Brian C. Kalt

 

On his book Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies

Cover Interview of January 09, 2012

In a nutshell

Constitutional Cliffhangers is about six situations in which the Constitution’s provisions for selecting, replacing, and punishing presidents are seriously vulnerable.

Each chapter starts out with a fictional scenario that dramatizes one situation of danger. The chapter then discusses the legal and practical angles that the players would fight over in the ensuing drama. Interspersed in that discussion, I have further snippets from the fictional scenario. By the end of the chapter, the reader has an idea of how that chapter’s “cliffhanger” could arise, how it might “sound” as it happened, how it would play out politically and legally, and what (if anything) we might do to prevent it.

In Chapter 4, for instance, the vice presidency is vacant and the president is killed, which touches off a succession dispute between the Speaker of the House and the secretary of state. There are serious constitutional problems with having the Speaker in the line of succession, and the chapter shows how the facts on the ground could lead to a power struggle. In an ordinary situation, the Speaker would take over and there would be no controversy, but if things are just so, we could have a disaster on our hands.

Bookending the six cliffhangers are two chapters that look for deeper meaning in all of this. For instance, the intersection of law and politics is very interesting to me. So many of these intricate legal questions would turn not on the best legal analysis but on which side is in a stronger political posture. That has significant implications for constitutional interpretation and design.

My first task, though, is to convince the reader that these things are worth worrying about. Historically, these sorts of situations—or near misses—happen all the time. When they do, we abuse hindsight and say, in retrospect, that it was obvious that it would happen; that it was obvious what the proper resolution would be; and that it is all fixed now, leaving us with nothing to worry about. And then the next thing happens, and the pattern repeats. I try to break through that complacency and figure out when and how these traps get created, and when and how we step in them.

My hope is that thinking about these things in advance can help. In some cases, we might be able to fix things to avoid the problem. Congress could simply amend the succession law, for instance.  In other cases, there isn’t much hope for anyone fixing the problem in advance. Here I think that perhaps my book might at least be useful in the middle of a crisis. That’s why the subtitle is “A Legal Guide for Presidents and Their Enemies.”

For more general readers, I want them to enjoy the drama in each chapter as they learn about the legal issues. Prosecuting sitting presidents, two-term presidents sneaking back into office—such issues are just too much fun to leave to the lawyers.