Y: The Last Man is the 2002-08 DC series written by Brian K. Vaughan, who also wrote Marvel’s Runaways, which we’ll be coming to presently. The premise is that, in the first issue, something happens (Vaughan is cagey about exactly what) which kills everything with a Y chromosome except the main character Yorick Brown and his pet monkey, Ampersand. Needless to say, this causes society to basically collapse right away. Horrendous traffic accidents (including planes and trains), utility failures, etc. Society is never going to be the same. This is bad for this blog, because we try to limit our analysis to stories that are easily analyzed under the current legal system, and it’s pretty clear from the first few issues that laws are going to change, and even if the legal system is restored there’s going to be a significant period of discontinuity.
But those first few issues do contain some really great constitutional drama about elected officials who die while in office. The first ten issues are in hardcover, but most of what we’ll be talking about is in the first trade.
I. The Twenty Fifth Amendment
Eight Presidents of the United States have died while in office, four from natural causes (Harrison, Taylor, Harding, and FDR) and four from assassination (Lincoln, Garfield, McKinley, Kennedy). In every case, the Vice President succeeded to the office of President, as specified by U.S. Const., Art. II, sec. 1. Since Kennedy was assassinated, the Twenty Fifth Amendment was ratified (1967). There have been three Presidential Succession Acts, the most recent of which was passed in 1947. The Constitution, as amended, provides that the Vice President is the direct successor of the President, followed by the Speaker of the House and then by the President Pro Tempore of the Senate. The current line of succession is here.
In the story, everyone ahead of the Secretary of Agriculture was a man. This is realistic enough. Today, the highest woman in the line of succession is Kathleen Sebelius, Secretary of HHS. But the story skims over some of the larger constitutional problems with the current version of the Presidential Succession Act. No person other than a Vice President has ever succeeded to the Presidency, but should that happen, we’d probably be looking at a constitutional crisis. If those deaths were the only crisis facing the country, that’d be bad enough, but the system would likely weather it after a few weeks or months of tension. But in a situation as fragile as the one in Y, things could easily get much worse, so we’ll look at those issues briefly.
In short, Art. I, sec. 1, cl. 6 provides, in pertinent part, that “. . .Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President. . . .” In the PSA, Congress has interpreted “officer” to mean “whatever sort of person Congress wants”. But the way the term “officer” is used elsewhere in the Constitution, e.g., Art. I, sec. 2, cl. 2, it seems to mean “cabinet-level members of the Executive branch”. This gets complicated for this story, because the way the Constitution structures the line of succession, that “officer” serves as Acting President only until such time as someone higher up the chain becomes eligible to serve, or there is a new election. The latter would happen normally anyway. But the former might happen if the House or Senate had a quorum and selected a new Speaker or President Pro Tem, who would take over as Acting President. That is, unless the Speaker and President Pro Tem don’t count as “officers,” in which case they aren’t eligible to succeed to the Presidency under Art. I, sec. 1, cl. 6, and that part of the PSA is unconstitutional.
Given the rocky state of things and the emergence of widely disparate factions within the government (including the issue we’ll talk about next) and around DC, this could easily happen, and we’d have a constitutional crisis on top of the logistical crisis caused by the disaster itself. Because clearly, this world needs more to go wrong than already has. Of course, this might not become an issue because of an intervening election, but it certainly has the potential to go badly. And I’m not really sure what would happen if there simply wasn’t an election held. Hasn’t ever happened—even during the Civil War—and there’s no real provision for not holding elections as far as I can tell.
II. Replacing Dead Congressmen
The term “congressmen” is now somewhat disfavored for various reasons, but in this case it’s precisely accurate. The question arises: who gets to represent the districts whose representatives and senators have died? A group of women early in the series who happen to be the wives of deceased congressmen take to arms at one point demanding that they be given their late husbands’ seats. They’re mostly Republicans, as a distinct majority of women serving in Congress are Democrats (true in 2013 as it was in 2002), so the Democrats now have an overwhelming majority in both houses of Congress. But, as the new (and potentially unsworn) President points out, politicians in America are not royalty, and their titles do not automatically descend upon spouses or children. So how do we go about replacing them?
Well the Seventeenth Amendment provides that Senators may be appointed by their state governors, but that’s not much help if all the governors are dead, and most of them are. But some states require that replacement Senators be chosen by special election, and Article I requires that for Representatives. There’s no legal mechanism for a widow taking over her late husband’s seat without one in most instances, and even if appointment to a vacant Senate seat were possible, it’d require action by the state government, and, well, good luck with that.
True, many times wives have taken their husband’s seats. But that always involved legal appointment by the governor to a vacant Senate seat or a victorious special election. The sympathy vote is pretty powerful, so it’s very common for a widow who wants her husband’s seat to win such elections, but such an election there must be. Vaughan got that one exactly right. The only real problem is that it’s kind of hard to believe that anyone from either party would even consider extra-constitutional succession plans.
From there, the story moves so far away from “normal” society that things get kind of hard to analyze. Extraordinary circumstances, etc. But these are two really good catches on constitutional law right out of the gate, and Vaughan is to be commended for both identifying them and handling them correctly.