ABC's excellent new hit drama "Designated Survivor" has shined a light on a position that rarely received much attention in the past: that of the member of the presidential line of succession who is hidden away when a huge number of government officials are all in the same place. In most cases, its use makes perfect sense — but in the case of a presidential transition, the choice of designated survivor, and the validity of the position, becomes far more complicated than it is during the annual State of the Union address.
In the show, the Kiefer Sutherland plays Housing and Urban Development Secretary Tom Kirkman, who is sequestered during the State of the Union. He ascends to the presidency when the Capitol building is bombed during the address.
The practice of using a designated survivor dates back to the middle of the Cold War, though of course we've never actually needed it in real life. Though the designated survivor is typically associated with the State of the Union address, it's also standard practice for a designated survivor to be in place during presidential inaugurations. For more on the designated survivor tradition, read this.
When there is a presidential transition, the designated survivor is chosen by the outgoing administration because an incoming administration won't have a confirmed cabinet that can make up the standard line of succession. An exception came back at the 2009 inauguration, when President Obama took over from George W Bush. Defense Secretary Robert Gates was the designated survivor — an easy choice, since Gates served in that role continuously under both Bush and Obama.
There's no such easy choice this year, as there isn't anyone from the Obama administration who will serve under Trump.
It's unlikely that we'll find out who the designated survivor is until, at the earliest, shortly before the inauguration festivities begin on Friday. The identity of the designated survivor is kept secret beforehand because everybody knowing who it is would defeat the purpose of having the position. In 2010, Secretary of State Hillary Clinton was absent from President Obama's State of the Union but she wasn't the designated survivor because everyone knew she was in London for a conference and wouldn't be at the SOTU. HUD Secretary was the designated survivor that year instead.
Of course, the constitutionality of the designated survivor in this sort of situation is pretty messy because the 20th Amendment, which details what should happen if the president-elect dies between the meeting of the Electoral College and the inauguration, doesn't set any provision for a line of succession if both the president-elect and vice president-elect both die except to say that Congress could pass legislation that would set a succession plan for that situation.
Congress has not, however, ever done that. It's unlikely that one of Trump's unconfirmed cabinet picks would be eligible for the line of succession, either before or after he's sworn in, and Speaker of the House Paul Ryan and Senate President pro tempore Orrin Hatch will both be at the inauguration. If the designated survivor is a member of Obama's outgoing cabinet, they would only fit inside the presidential line of succession before Trump is sworn in, and it's not likely they would be president for very long.
Constitutionally, that would be the cleanest scenario. Any other would be far murkier and messier, and if a "Designated Survivor"-type event were to occur at the inauguration, it would probably, constitutionally, fall to Congress to choose a new president. There are, notably, a lot of congresspeople skipping the inauguration. But there will be many more present.
On the show, special congressional elections were held to fill seats, after only two members of Congress survived the terrorist attack that kicks off the series. In the real world, vacancies in the House of Representatives can only be filled by election, but in many states the governor is allowed to appoint Senate replacements — though some states require that their Senate vacancies be filled by special election.
Really, though, there's just no legitimate constitutional provision for a situation in which everyone at the inauguration of a new president is killed, and so trying to predict what would happen next would be foolhardy. It's entirely possible we just wouldn't have a president for a while.
Read original story Will President-elect Trump Have a Designated Survivor for the Inauguration? At TheWrap