Designated Survivor: Rick Perry

We have talked in class multiple times about the "designated survivor" during the State of the Union. Tonight, that man was Secretary of Energy Rick Perry: he oh "oops" fame, who wanted to abolish the agency he now runs.

The Washington Post reports that Perry was picked off a short bench of potential designees, as the Trump administration's several interim cabinet members (as the President calls them, "my Actings") are ineligible:

Legal and congressional experts, and former administration officials say the designated survivor — who would take over as president should an unspeakable catastrophe hit the Capitol and wipe out the country’s leaders — must be someone who has been confirmed to his or her position by the Senate. That would, in theory, eliminate current Cabinet officials such as acting attorney general Matthew G. Whitaker, acting Defense Secretary Patrick Shanahan and acting Interior Secretary David Bernhardt, who are all serving on an interim basis, although Bernhardt was tapped for the job permanently on Monday. 

The relevant statute is 3 U.S.C. § 19 (e):

Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution. Subsection (d) of this section shall apply only to officers appointed, by and with the advice and consent of the Senate, prior to the time of the death, resignation, removal from office, inability, or failure to qualify, of the President pro tempore, and only to officers not under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon them.

But the Post notes that this rule may not apply to officials who were previously Senate-confirmed for another position:

the law does not explicitly make clear whether the acting Cabinet official would be disqualified from the presidential line of succession if he or she had been confirmed by the Senate to another position. Shanahan and Bernhardt have been confirmed as deputy secretaries, but not to their current acting posts. Various Supreme Court opinions — one from 1893 and another from 1994 — allowed for lower-level administration officials to bypass confirmation for a different government position because they had already been confirmed to a job with similar responsibilities

The precedent that any prior Senate confirmation makes an individual succession-qualified would mean that Whitaker, Shanahan, and Bernhardt (former US Attorney for SDIA, Deputy Secretary of Defense, and Deputy Secretary of the Interior, respectively) could all assume the presidency if the office fell to them. The administration does have one more "Acting" -- Acting EPA Administrator Andrew Wheeler, who was Senate confirmed to his former office of Deputy EPA Administrator! Sadly for the coal industry, EPA Administrator is not in the line of succession, so Wheeler cannot be designated survivor regardless.