Congressional Record: July 22, 2004 (Senate)
Page S8768-S8776

 
                         SUBMITTED RESOLUTIONS





SENATE RESOLUTION 419--EXPRESSING THE SENSE OF THE SENATE WITH RESPECT 
TO THE CONTINUITY OF GOVERNMENT AND THE SMOOTH TRANSITION OF EXECUTIVE 
                                 POWER

  Mr. CORNYN submitted the following resolution; which was referred to 
the Committee on Rules and Administration:

                              S. Res. 419

       Whereas members of the Senate, regardless of political 
     party affiliation, agree that the American people deserve a 
     Government that is failsafe and foolproof, and that 
     terrorists should never have the ability to disrupt the 
     operations of the Government;
       Whereas continuity of governmental operations in the wake 
     of a catastrophic terrorist attack remains a pressing issue 
     of national importance before the United States Congress;
       Whereas, at a minimum, terrorists should never have the 
     ability, by launching a terrorist attack, to change the 
     political party that is in control of the Government, 
     regardless of which party is in power;
       Whereas, whenever control of the White House shall change 
     from one political party to another, the outgoing President 
     and the incoming President should work together, and with the 
     Senate to the extent determined appropriate by the Senate, to 
     ensure a smooth transition of executive power, in the 
     interest of the American people;
       Whereas, under the current presidential succession statute 
     in section 19 of title 3, United States Code, the members of 
     the cabinet, defined as the heads of the statutory executive 
     departments under section 101 of title 5, United States Code, 
     fall within the line of succession to the presidency;
       Whereas, during previous presidential transition periods, 
     the incoming President has had to serve with cabinet members 
     from the prior administration, including subcabinet officials 
     from the prior administration acting as cabinet members, for 
     at least some period of time;
       Whereas the Constitution vests the appointment power of 
     executive branch officials in the President, by and with the 
     advice and consent of the Senate, and nothing in this 
     resolution is intended to alter either the constitutional 
     power of the President or the constitutional function of the 
     Senate with regard to the confirmation of presidential 
     nominees;
       Whereas an incoming President cannot exercise the 
     constitutional powers of the President, in order to ensure a 
     smooth transition of Government, until noon on the 20th day 
     of January, pursuant to the terms of the twentieth amendment 
     to the Constitution;
       Whereas cooperation between the incoming and the outgoing 
     President is therefore the only way to ensure a smooth 
     transition of Government;
       Whereas Congress throughout history has acted consistently 
     and in a bipartisan fashion to encourage measures to ensure 
     the smooth transition of executive power from one President 
     to another, such as through the enactment of the Presidential 
     Transition Act of 1963 (3 U.S.C. 102 note; Public Law 88-277) 
     and subsequent amendments;
       Whereas Congress has previously concluded that ``[t]he 
     national interest requires'' that ``the orderly transfer of 
     the executive power in connection with the expiration of the 
     term of office of a President and the inauguration of a new 
     President . . . be accomplished so as to assure continuity in 
     the faithful execution of the laws and in the conduct of the 
     affairs of the Federal Government, both domestic and 
     foreign'' under the Presidential Transition Act of 1963 (3 
     U.S.C. 102 note; Public Law 88-277);
       Whereas Congress has further concluded that ``[a]ny 
     disruption occasioned by the transfer of the executive power 
     could produce results detrimental to the safety and well-
     being of the United States and its people'' under the 
     Presidential Transition Act of 1963 (3 U.S.C. 102 note; 
     Public Law 88-277); and
       Whereas Congress has previously expressed its intent ``that 
     appropriate actions be authorized and taken to avoid or 
     minimize any disruption'' and ``that all officers of the 
     Government so conduct the affairs of the Government for which 
     they exercise responsibility and authority as (1) to be 
     mindful of problems occasioned by transitions in the office 
     of the President, (2) to take appropriate lawful steps to 
     avoid or minimize disruptions that might be occasioned by the 
     transfer of the executive power, and (3) otherwise to promote 
     orderly transitions in the office of President'' under the 
     Presidential Transition Act of 1963 (3 U.S.C. 102 note; 
     Public Law 88-277): Now, therefore, be it
       Resolved, that it is the sense of the Senate that during 
     the period preceding the end of a term of office in which a 
     President will not be serving a succeeding term--
       (1) that President should consider submitting the 
     nominations of individuals to the Senate who are selected by 
     the President-elect for offices that fall within the line of 
     succession;
       (2) the Senate should consider conducting confirmation 
     proceedings and votes on the nominations described under 
     paragraph (1), to the extent determined appropriate by the 
     Senate, between January 3 and January 20 before the 
     Inauguration; and
       (3) that President should consider agreeing to sign and 
     deliver commissions for all approved nominations on January 
     20 before the Inauguration to ensure continuity of 
     Government.

  Mr. CORNYN. Mr. President, yesterday I rose to address this body in 
support of a Senate resolution on a profoundly nonpartisan issue. As 
President Bush and the United States government continue their fight to 
protect the American way of life in the war against terrorism, they 
have also been fighting another battle to protect American ideals and 
principles--a battle against human trafficking and slavery. Most 
Americans would be shocked to learn that the institution of slavery--an 
institution that hundreds of thousands of Americans shed precious blood 
to destroy--continues to persist today--not just around the world, but 
hidden in communities across America. This is a new fight against an 
old evil. It is the most fundamental civil rights issue of our time.
  I was pleased to work with my lead Democrat co-sponsor, Senator 
Schumer, as well as with Senators Graham of South Carolina, Leahy, and 
Clinton, to introduce and obtain full Senate approval of Senate 
Resolution 414. That resolution expressed strong support for the 
Justice Department's recent efforts to combat human trafficking, under 
the leadership of the Civil Rights Division. The resolution noted that 
the Justice Department recently held its first-ever National Conference 
on Human Trafficking in Tampa, Florida, where it announced a new 
comprehensive model state anti-trafficking law. The resolution 
encouraged states to consider adopting such laws where they do not 
currently exist.
  Today, I rise in support of a Senate resolution on another profoundly 
nonpartisan issue--the preservation of our system of government in the 
wake of a catastrophic terrorist attack. Just as most Americans would 
be shocked to learn about the incidence of forced labor and sexual 
servitude in communities across the country, I believe most Americans 
would be shocked to learn that our laws are profoundly inadequate to 
ensure continuity of governmental operations in the wake of a 
catastrophic terrorist attack.
  I have spent a great deal of time and energy this past year on the 
issue of continuity of government. Last September, I chaired two 
hearings to examine continuity of government problems in the two 
political branches of government. On September 9, I chaired a hearing 
of the Senate Judiciary Committee to examine continuity problems in the 
Congress, and on September 16, Senator Lott and I co-chaired a joint 
hearing of the Senate Rules and Judiciary Committees to look at 
problems in our system of Presidential succession.
  These are not partisan issues. These are imminently nonpartisan 
issues, and so I was pleased to work on those hearings with my 
distinguished colleagues on the other side of the aisle--Senator Leahy, 
the ranking member of the Senate Judiciary Committee, and Senator 
Feingold, the ranking member of the Senate Judiciary Subcommittee on 
the Constitution, Civil Rights, and Property Rights, which I am honored 
to chair.

  In November, I introduced Senate Joint Resolution 23, a proposed 
constitutional amendment to ensure continuity of Congress. 
Constitutional legal experts across the political spectrum have 
recognized that our current laws are inadequate to ensure continuity of 
Congressional operations in the wake of a catastrophic terrorist 
attack, and that only a constitutional amendment can ensure that the 
American people will never have to suffer under martial law.
  The constitutional amendment I introduced implements the 
recommendations of the bipartisan blue ribbon Continuity of Government 
Commission, sponsored by the American Enterprise Institute and the 
Brookings Institution. That commission is led by two of our nation's 
truly most distinguished American statesmen--its honorary co-chairmen, 
former Presidents Jimmy Carter and Gerald Ford--as well as by its two 
distinguished co-chairmen, former Senator Alan Simpson and former White 
House Counsel Lloyd Cutler. The commission is comprised of former high-
ranking government officials of both parties, and ably staffed by 
Norman Ornstein, John Fortier, and Thomas Mann.
  I know that there are sharp divisions in the House over what kinds of 
continuity measures to adopt--whether

[[Page S8771]]

emergency interim appointments are appropriate and necessary, or if 
expedited special elections alone are sufficient. It is important to 
recognize that my amendment takes no position in that debate. My 
amendment would not compel either chamber of Congress to adopt any 
particular methodology for redressing continuity problems. It would 
simply empower Congress to adopt legislation to guarantee continuity of 
Congressional operations--power that Congress does not currently 
possess. It is modeled after Article II of the Constitution, which 
empowers Congress to adopt legislation to provide for continuity of the 
Presidency.
  On January 27 of this year, I chaired a hearing of the Senate 
Judiciary Committee so that legal experts could examine the need for 
Senate Joint Resolution 23. And on that same day, I introduced 
implementing legislation (S. 2031), entitled the Continuity of the 
Senate Act of 2004. Continuity problems affect both the House and the 
Senate. Indeed, the Senate arguably faces the most dire problem of 
all--if a majority of Senators are incapacitated, Congress could be 
disabled for as long as four years, the amount of time it takes to 
elect a new majority of Senators. The Continuity of the Senate Act of 
2004 would implement the constitutional amendment proposed by Senate 
Joint Resolution 23. It would simply empower each state to adopt 
continuity measures for their senators in case of incapacity--following 
the model of the 17th Amendment with respect to Senate vacancies. I am 
pleased that Senators Dodd and Lott agreed to serve as original co-
sponsors of this legislation. After all, they are the ranking Democrat 
and Republican, respectively, on the Senate Rules Committee--the 
committee that would have jurisdiction to consider the Continuity of 
the Senate Act, in the event that the constitutional amendment I have 
proposed is approved by two-thirds of the Congress and three-fourths of 
the states.
  On May 13, I convened a meeting of the Senate Judiciary Subcommittee 
on the Constitution, Civil Rights and Property Rights--the subcommittee 
that possesses jurisdiction over constitutional amendments. I am 
pleased that the subcommittee approved Senate Joint Resolution 23 on a 
bipartisan vote. I am particularly pleased that the resolution was 
supported by my distinguished colleague, the subcommittee's ranking 
Democrat, Senator Feingold. I know from working with him these past 
several months that he is no fan of constitutional amendments. And of 
course, everyone in this chamber agrees that the Constitution should 
not be amended casually. Yet he recognized--as have constitutional 
legal experts across the political spectrum--that the only way to 
ensure continuity of Congressional operations is a constitutional 
amendment. I look forward to working with Senator Hatch, the chairman 
of the Senate Judiciary Committee, in coming weeks and months so that 
the full committee can consider the merits of, and the need for, Senate 
Joint Resolution 23.

  Of course, Congress is not the only institution that faces serious 
problems of continuity of operations. Our laws are also inadequate with 
respect to Presidential succession. Article II of the Constitution 
gives Congress the power to enact laws to address Presidential 
succession--just as my proposed constitutional amendment would give 
Congress such power with respect to continuity of Congress. Yet legal 
experts across the political spectrum have written that the current 
Presidential succession statute is unconstitutional and unworkable.
  Accordingly, I introduced legislation in February, right before 
President's Day, to reform the Presidential succession statute (S. 
2073). That same day, I also introduced a Senate resolution (S. Con. 
Res. 89) to establish a protocol for ensuring proper transition between 
an outgoing President and a newly elected President. Both measures were 
cosponsored by Senator Lott, the chairman of the Rules Committee, which 
exercises jurisdiction over such matters.
  I am pleased to introduce a more robust version of that same 
resolution today for the Senate's consideration, in the form of a 
Senate resolution that requires the consent of only this body. It is an 
important step to ensuring that, no matter what, at a minimum, 
terrorists will never be able to determine, by launching a terrorist 
strike, which party controls the White House.
  Imagine if you will that it is January 20, the inauguration date for 
a new incoming President. The sun is shining, and the American people 
are watching. The new President and Vice President sit on the center 
platform just steps away from the Capitol Rotunda, joined by American 
and foreign dignitaries. Leaders of both Houses of Congress sit nearby 
as well. It is a beautiful day--but as national security and continuity 
of government experts have long recognized, it is also a window of 
vulnerability. If terrorists launched a successful strike on 
Inauguration Day, it could wipe out not only our new President, but 
also the first three people who are in the line of Presidential 
succession under our current Presidential succession statute--the Vice 
President, the Speaker of the House, and the President pro tempore of 
the Senate.
  What happens next?
  Well, imagine that the election of the prior year had resulted in a 
change of political party control of the White House. During previous 
Presidential transition periods, a new incoming President has had to 
serve with Cabinet members from the prior administration--including 
sub-Cabinet officials from the prior administration acting as Cabinet 
members--for at least some period of time. That means that, in the 
event of a successful inaugural day attack, the official who could rise 
to become Acting President, perhaps serving for four full years, could 
very well be a member of the outgoing administration--indeed, a member 
of the political party that the American people expelled from office at 
the most recent election.
  The resolution I introduce today would help prevent this from 
happening. As the resolution acknowledges, members of the Senate, 
regardless of political party affiliation, agree that the American 
people deserve a Government that is failsafe and foolproof. We agree 
that terrorists should never have the ability to disrupt the operations 
of the Government. We agree that continuity of governmental operations 
in the wake of a catastrophic terrorist attack remains a pressing issue 
of national importance before the United States Congress. And we agree 
that, at a minimum, terrorists should never have the ability, by 
launching a terrorist attack, to change the political party that is in 
control of the Government--a principle that applies regardless of which 
party is in power.
  An incoming President, of course, cannot exercise the constitutional 
powers of the President, in order to ensure a smooth transition of 
Government, until noon on the 20th day of January, pursuant to the 
terms of the Twentieth Amendment of the Constitution. Accordingly, 
cooperation between the incoming and the outgoing President is the only 
way to ensure a smooth transition of government.
  Whenever control of the White House shall change from one political 
party to another, the outgoing President and the incoming President 
should work together, and with the Senate to the extent deemed 
appropriate by the Senate, to ensure a smooth transition of executive 
power, in the interest of the American people. Accordingly, the 
resolution establishes a non-binding protocol--a protocol with three 
parts.
  First, the resolution states that an outgoing President should 
consider submitting the nominations of individuals to the Senate who 
are selected by the President-elect for offices that fall within the 
line of succession. Under the current Presidential succession statute 
(3 U.S.C. Sec. 19), that means the members of the Cabinet, defined as 
the heads of the statutory executive departments (5 U.S.C. Sec. 101).
  Second, the resolution provides that the Senate should consider 
conducting confirmation proceedings and votes on Cabinet nominations, 
to the extent deemed appropriate by the Senate, between January 3 and 
January 20 before the Inauguration. Of course, nothing in the 
resolution purports to alter the constitutional powers of either the 
President or the Senate, and indeed, nothing in this resolution could 
constitutionally do so.
  And third, the resolution encourages the outgoing President to 
consider agreeing to sign and deliver commissions for all approved 
nominations on January 20 before the Inauguration--all to ensure 
continuity of government.

[[Page S8772]]

  I am pleased that this resolution has received such strong support 
amongst experts in the fields of continuity of government and 
constitutional law. This is a truly nonpartisan effort, so I am 
particularly pleased that the resolution is so enthusiastically 
supported by constitutional legal experts such as Walter Dellinger, 
Cass Sunstein, Laurence Tribe, Michael Gerhardt, and Howard Wasserman. 
Rather than repeat their words here, I will simply ask unanimous 
consent that their letters be included in the Congressional Record at 
the close of my remarks.
  Throughout history, Congress has acted consistently and in a 
bipartisan fashion to encourage measures to ensure the smooth 
transition of Executive power from one President to another. I think, 
for example, of the Presidential Transition Act of 1963, and its 
subsequent amendments. In that Act, Congress concluded that ``[t]he 
national interest requires'' that ``the orderly transfer of the 
executive power in connection with the expiration of the term of office 
of a President and the inauguration of a new President . . . be 
accomplished so as to assure continuity in the faithful execution of 
the laws and in the conduct of the affairs of the Federal Government, 
both domestic and foreign.'' Congress further concluded that ``[a]ny 
disruption occasioned by the transfer of the executive power could 
produce results detrimental to the safety and well-being of the United 
States and its people.'' Accordingly, Congress expressed its intent 
``that appropriate actions be authorized and taken to avoid or minimize 
any disruption'' and ``that all officers of the Government so conduct 
the affairs of the Government for which they exercise responsibility 
and authority as (1) to be mindful of problems occasioned by 
transitions in the office of President, (2) to take appropriate lawful 
steps to avoid or minimize disruptions that might be occasioned by the 
transfer of the executive power, and (3) otherwise to promote orderly 
transitions in the office of President.''
  Close cooperation between an incoming President and an outgoing 
President is the only way to ensure a smooth transition of government. 
So this evening, just days away from the first of our nation's two 
great political conventions, I am pleased to introduce a resolution to 
ensure continuity of government during a unique window of 
vulnerability--the Presidential inaugural period. And I look forward to 
further debate and discussion on other legislation to ensure the 
continuity of our national government.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Harvard University,

                                     Cambridge, MA, July 22, 2004.
     Hon. John Cornyn,
     Chairman, U.S. Senate Judiciary Subcommittee on the 
         Constitution, Civil Rights & Property Rights, Washington, 
         DC.
       Dear Senator Cornyn: I am writing to commend you for 
     drafting the Resolution whose text you have shared with me 
     expressing the sense of the Senate with respect to continuity 
     of government and the smooth transition of Executive power. I 
     write not as a friend and supporter of Senators Kerry and 
     Edwards, whose election this November to the presidency and 
     vice presidency I believe you know I strongly favor, but as a 
     citizen of this nation and, for more than 30 years, a 
     professor of constitutional law who is devoted to the success 
     of its government of, by, and for the people,
       The Resolution I have read is a non-binding measure that 
     creates no obligations or rights and imposes no restrictions. 
     For this reason among others, it is fully consistent with the 
     Constitution of the United States. Unlike some such non-
     binding measures, however, this one seems to me extremely 
     wise. It entails no posturing, and the recommendations it 
     makes for the transition from an incumbent president's 
     administration to that of a newly elected president who is 
     not the incumbent--a situation I fervently hope we will 
     confront between November 2, 2004, and January 20, 2005--seem 
     to me not only sensible but potentially crucial, especially 
     during a period of our history when fanatic international 
     terrorism threatens to disrupt our political and governmental 
     processes. The recommendations are such that a non-partisan, 
     good-government perspective would commend this Resolution to 
     the entire Senate, and I strongly support its adoption.
           Yours truly,
     Laurence Tribe.
                                  ____



                             University of Chicago Law School,

                                       Chicago, IL, July 22, 2004.
     Senator John Cornyn,
     Chairman, Senate Subcommittee on the Constitution, Civil 
         Rights, and Property Rights, Senate Committee on the 
         Judiciary, U.S. Senate, Washington, DC.
       Dear Senator Cornyn: I am writing to express support, from 
     the standpoint of constitutional structure and good 
     governance, for the proposed resolution involving continuity 
     in government, which would contain the following language:
       ``Resolved, that it is the sense of the Senate that during 
     the period preceding the end of a term of office in which a 
     President will not be serving a succeeding term--
       (1) that President should consider submitting the 
     nominations of individuals to the Senate who are selected by 
     the President-elect for offices that fall within the line of 
     succession;
       (2) the Senate should consider conducting confirmation 
     proceedings and votes on the nominations described under 
     paragraph (1), to the extent deemed appropriate by the 
     Senate, between January 3 and January 20 before the 
     Inauguration; and
       (3) that President should consider agreeing to sign and 
     deliver commissions for all approved nominations on January 
     20 before the Inauguration, to ensure continuity of 
     Government''
       The significant advantage of the suggested process is that 
     in the event of terrorist attack or other large-scale 
     disruption, it would reduce the risk that there would be 
     ``gaps'' in the personnel and operation of the Executive 
     Branch. If the process operates as suggested, then there 
     would be no period in which certain high-level offices (those 
     that fall within the line of succession) lack personnel of 
     the President's choosing. A disadvantage of the suggested 
     process is that it would put perhaps unwelcome time pressure 
     on both the President-elect and the Senate--while also 
     putting the sitting President in a mildly awkward position. 
     Nonetheless, the text of the Resolution is not rigid 
     (``should consider''), and there are large virtues, for the 
     President-elect and the Senate alike, of providing an early, 
     expeditious process for ensuring that the President's Cabinet 
     is in place. The process thus promises to reduce a serious 
     danger without compromising important structural values.
       One of the most central goals of our constitutional system 
     is to create an energetic and unitary executive branch, one 
     that is capable of prompt and expeditious action. See The 
     Federalist No. 70; E. Corwin, The President--Office and 
     Powers 3-30 (1957). This resolution, at once bipartisan and 
     nonpartisan, would serve to promote that goal under 
     contemporary conditions.
           Sincerely,
     Cass R. Sunstein.
                                  ____



                                        O'Melveny & Myers LLP,

                                    Washington, DC, July 22, 2004.
     Re: ``Smooth Transition'' Proposed Legislation.

     Hon. John Cornyn,
     U.S. Senate,
     Washington, DC.
       Dear Senator Cornyn: On rare occasions a suggestion comes 
     along that is truly a good government idea. The ``smooth 
     transition'' resolution you have proposed is a premier 
     example. It is a simple idea that would strengthen our 
     government, regardless of party and regardless of ideology. 
     To have the outgoing President, in his final weeks in office, 
     submit to the Senate the nominations of those individuals the 
     new President-elect has chosen for the cabinet is not merely 
     a convenience: it is essential in an era in which our 
     government must be ever vigilant.
       I served in the White House in February, March and April of 
     1993. As you will recall, the position of Attorney General 
     was not filled in a timely fashion. In my view this resulted 
     in serious mistakes being made, as the President turned to 
     the White House staff for advice and legal opinions that 
     would have come from the Department of Justice had there been 
     a functioning Attorney General. Because of the great and 
     steady influence of career lawyers at Justice, the advice 
     from that Department is generally more solid and consistent 
     over time than a President receives when he has to rely on 
     the White House to carry out duties that should be performed 
     by the Attorney General. So I know first hand how important 
     it is to have new Department Heads in place at the moment the 
     new President is sworn in to office.
       Your amendment does more than facilitate the smooth 
     functioning of government. It sets the right tone at a time 
     when so many partisan battles divide us in spirit. Our 
     parties should compete vigorously on policy and present 
     alternative visions and plans to the American people. But 
     then we should facilitate rather than inhibit the capacity of 
     the prevailing party to do the job the American people have 
     chosen them to do. This is a sentiment I expressed four years 
     ago in the pages of The Wall Street Journal as the new 
     administration of President George W. Bush came to power. I 
     am taking the liberty of including a copy of ``The Wrong Way 
     to Oppose'' from the Journal for January 10, 2001. I wish I 
     had thought of your idea and included it in that piece.
       I hope your resolution is adopted with great bi-partisan 
     support. Best wishes to you.
           Very truly yours,
                                              Walter E. Dellinger,
                                         of O'Melveny & Myers LLP.

[[Page S8773]]

                                     The College of William & Mary


                                                School of Law,

                                  Williamsburg, VA, July 22, 2004.
     Hon. John Cornyn,
     U.S. Senate, Committee on the Judiciary, Subcommittee on the 
         Constitution, Civil Rights, and Property Rights, 
         Washington, DC.
       Dear Senator Cornyn: I write to express my support for the 
     resolution you are introducing suggesting that the President 
     and Senate should each consider taking particular actions 
     later this year to ensure a smooth transition and the 
     continuity of government. I share your concerns about 
     possibly crippling attacks against our government by 
     terrorists and your efforts to ameliorate the effects of any 
     such attacks. I believe your proposed resolution expresses a 
     noble ideal for the President and the Senate to work together 
     as smoothly and quickly as possible to ensure that the 
     administration is fully staffed and operational during the 
     critical period after the 2004 presidential election and 
     before Inauguration Day in January 2005.
       I appreciate that resolutions on presidential nominations 
     touch upon extremely sensitive constitutional terrain. The 
     Appointments Clause of the Constitution vests the President 
     with the authority to nominate certain high-ranking 
     officials, and presidents have fiercely protected this 
     prerogative from encroachment by the Senate. The Appointments 
     Clause also vests the Senate with the authority to provide 
     its ``Advice and Consent'' on presidential nominations, and 
     the Senate has defended this authority from interference by 
     any other branch. I believe your resolution has merit in part 
     because it accords due respect for the respective 
     appointments authorities of the President and the Senate. It 
     is non-binding. It does not require either branch to do 
     anything it prefers not to do. It shows due respect for the 
     autonomy of the President and the Senate in exercising their 
     respective authorities over federal appointments. Separation 
     of powers problems arise when one branch encroaches upon, or 
     seeks to usurp, the authority of another branch. But, to its 
     credit, the resolution avoids such problems by both 
     acknowledging that its purpose is not to ``alter the 
     constitutional power of the President or the constitutional 
     function of the Senate with regard to the confirmation of 
     Presidential nominations'' and by calling upon the President 
     and the Senate merely to ``consider'' taking certain actions 
     later this year--the President in possibly nominating the 
     President-elect's nominees for cabinet and other offices 
     requiring confirmation, and the Senate in considering holding 
     confirmation proceedings and votes on these nominations prior 
     to the Inaugural.
       I understand that the President-Elect may not be able, for 
     whatever reason, to nominate all the people he would like by 
     his inaugural. I also understand that the Senate may not be 
     able, for whatever reason, to act as quickly as either the 
     President-Elect or resolution suggests it ought to in taking 
     final action upon his nominations. I also understand that 
     Presidents-Elect's nominees sometimes run into troubles in 
     confirmation proceedings, and there is no way to prevent at 
     least some impasses from occurring. But your resolution does 
     not require either the President or the Senate to do anything 
     in particular; it merely expresses a noble ideal shared by 
     those voting for it.
       I believe that this resolution, like your proposed 
     constitutional amendment S.J. Res. 23, should be commended 
     for its non-partisanship. I share your hope for a smooth 
     transition and continuity of the government for whoever wins 
     this November.
           Very truly yours,
                                              Michael J. Gerhardt,
                                Arthur B. Hanson Professor of Law.


                             Florida International University,

                                         Miami, FL, July 22, 2004.
     Hon. John C. Cornyn,
     U.S. Senate,
     Washington, DC.
       Dear Senator Cornyn:  I write in support of your Sense-of-
     Senate Resolution, proposing a new informal practice for 
     nominating and confirming Cabinet officials when the White 
     House changes party hands. The Resolution urges an outgoing 
     President to nominate, and the new Senate to hold hearings 
     and confirm, some or all of the President-elect's Cabinet 
     prior to the January 20 Inauguration.
       Thomas Jefferson's ascension to the presidency has been 
     labeled the Revolution of 1800 in part because it marked one 
     of the first peaceful and orderly transfers of executive 
     power. The continued peaceful and orderly transfer of 
     executive power between political parties and ideologies has 
     become a hallmark of the American constitutional order.
       However, the Inauguration ceremony that attends this 
     orderly transfer of power, with leaders of all three branches 
     of the federal government present, marks one of two periods 
     in which presidential succession and continuity is uniquely 
     vulnerable to terrorist attack. The other vulnerable period 
     is when the President addresses a Joint Session of Congress. 
     And the safety valve used then--having one person in the line 
     of presidential succession, whether the Vice President or a 
     Cabinet member, outside of Washington--is not available in 
     the Inauguration scenario. The only people in the line of 
     presidential succession not present at the January 20 
     ceremony are Cabinet Secretaries (or perhaps only deputies 
     acting as secretary) remaining from the outgoing 
     administration. It would be inconsistent with the expressed 
     will of the People if a terrorist event on January 20, 2004 
     left the nation (only to use the next possible example of 
     this scenario) not with four years of a President Kerry and 
     Vice President Edwards, but with four years of Acting 
     President Rumsfeld.
       The proposal addresses this problem by ensuring that the 
     Cabinet members in the line of succession during the handover 
     of power on noon on January 20 will be the hand-picked policy 
     surrogates of the incoming President, those who had been 
     chosen to help the new President exercise executive power and 
     represent the national electoral constituency. Should tragedy 
     strike the Inauguration, the executive branch that emerges 
     conforms politically and ideologically with the public will 
     expressed the previous November. The acting president would 
     be of the same political party and policy commitments as the 
     person just chosen by the People through the Electoral 
     College.
       I emphasize several aspects of the proposed practice. 
     First, it urges the Senate to hold hearings and floor votes 
     ``to the extent feasible.'' This practice does not short-
     circuit the Senate's advice-and-consent role or rigorous 
     vetting of the President-elect's Cabinet. It commands that 
     the Senate take best efforts in the two-plus weeks between 
     January 3 and Inauguration Day to confirm the new Cabinet, 
     particularly some or all of the high-profile positions at the 
     top of the Departments of State, Treasury, Defense, Justice, 
     and Homeland Security. Second, it urges the outgoing 
     President to sign and deliver Commissions to the new 
     Secretaries on the morning of January 20, prior to the 
     ceremony. Until that point, the lame-duck President still 
     acts in the event of emergencies with the counsel of his own 
     Cabinet.
       Finally, the Resolution must be considered in light of the 
     Presidential Succession Act of 2004, S. 2073, 108th Cong. 
     (2004), which (properly, both as a constitutional and policy 
     matter) removes legislative officers from the line of 
     presidential succession. The practice created by the 
     Resolution, in connection with the proposed changes to the 
     succession statute, thus provides the only way to ensure a 
     popularly and politically justifiable method of presidential 
     succession in the event of an Inauguration Day tragedy.
       This informal practice benefits both political parties and 
     the American People as a whole, ensuring a smooth transition 
     whenever executive power transfers between parties. In fact, 
     the partisan cooperation inherent in the practice (an 
     outgoing President of one party nominating the policy support 
     of his successor) may ease the political rancor in the wake 
     of a heated election. This plan deserves the support of both 
     parties and should be passed.
       Thank you for your time. Best of luck in your efforts.
           Cordially,
                                             Howard M. Wassermann.
                                 ______