Y: The Last Man

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.

III. Conclusion

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.

28 responses to “Y: The Last Man

  1. Melanie Koleini

    What about the line of succession for the governors? Is it determined by each state’s constitution? I assume most states have a lt. governor that can take over if the governor dies, but what happens if they both die?

  2. In Irving Wallace’s THE MAN, there is a feeble attempt to unseat the black President Pro Tem on the ground that he is not an “officer”. However, the person who tries this asserts that cabinet members are not “officers” either.

  3. Melanie Koleini

    If there were only 2 Supreme Court Justices alive, could they legally render decisions?

    • Yes. The Constitution does not require a particular number of Supreme Court Justices. Congress can change the maximum number, and there have been as few as five Justices at various times, but it cannot require a particular number in order for Supreme Court decisions to be valid.

    • During the depression there was a famous threat to “stuff” the Supreme Court with people more sympathetic to the governments actions in order to avoid having the court declare certain economic laws unconstitutional.

      The Supereme Court did seem to switch to become more sympathetic to these actions and the threat was never followed through with.

  4. …whereupon the Secretary of State retorts that “when the written law is obscure, you follow the unwritten law, which is that the next man in line becomes President with no ifs, ands, or buts, and no special elections either.

    I guess we can blame Tyler.

  5. Melanie Koleini

    The set up for this story leads me to ask about a slightly different scenario:
    Instead of almost everyone with a Y chromosome instantly dieting, what if they all became terminally ill (6 months to live)? If the Present (and everyone else) knew (and believed) the end was near, what could do they do to preserve society? Would a mass special election to elect females into office be legal? Would/Could congress declare a draft to conscript enough women into the armed forces to maintain order?

    And what about the non-human mammals? For example, assuming there was enough time to try something, what could anyone do to keep dairy cows from going extinct? Could all male calves (born after the catastrophe) be confiscated by the government for breading purposes? Would this require passing a new law or would the endangered species act cover it?

    • Mmm… breaded calves, definitely the needed solution.

    • A lot of it depends on how cooperative everyone could become. You for instance could not just start ordering special elections willy nilly, especially for offices where the Constitution makes statements about the matter. For instance, elections of Representatives are covered in Art I, including elections to replace them. And the writ of election required for the special election is issued when there is a vacancy. So, if any given representative opposed the special election while living, it might be at best Constitutionally questionable to start arranging much less hold a special election. But if the Representative played along, perhaps officially announcing his resignation to be effective in a couple of months, then you could probably hold or at least really get the ball rolling on elections for them. Now, restricting those elections to females would not be Constitutional, but if people actually knew and believed that all the men were about to die then that wouldn’t be a practical issue since very few men would get elected in these elections.

      For the president, you could probably ammend the PSA to have a handpicked successor, again as long as enough of the government was playing along.

      And yes the calves could be confiscated for pulbic use, provided just compensation was paid. It would be covered under eminent domain (normally used for land, but that isn’t a restriction). Though as a practical matter if you had notice of such an upcoming disaster you would be better off just storing abundant material for artificial insemination. Turkeys in particular are already mostly created through artificial insemination.

      Drafts have been covered on this blog before and Congress would certainly have the authority to begin drafting women, though logistically there might be a bit of a challenge there (the currently selective service provisions only require registration of men so the infrastructure isn’t there currently). More easily, they could begin recalling women from the lists of “Inactive Reserves”, which most servicemembers are placed on for various lengths of time after leaving the service.

      • Melanie Koleini

        Thanks for the answer. Turkeys don’t have a Y chromosome so they wouldn’t need to be included in emergency programs. (Birds determine sex differently than mammals.)

      • @Melanie Thanks for pointing out birds don’t use Y Chromosomes, I hadn’t been aware of that.

  6. Interestingly, there are almost enough female senators, governors, and lt. governors that the U.S. Senate would be able to muster a quorum. I count 42 senators in a YTLM scenario.

    Unfortunately, four states require special elections for senate vacancies, and three of them have male Senators but female governors or LGs. I think that, but for those states, the Senate could convene, elect a new President Pro Temp and bump Acting President Sebelius from office. I was nerdy enough to look up the lt. governors and procedures for filling senate vacancies, but I’m not nerdy enough to research each state’s line of succession and current office holders, so there might be more.

  7. Sadly, such a drastic event would likely, in our current political climate, spur the reaction as best summed up by Rahm Immanuel: “Never let a crisis go to waste.”

    I suspect that the Constitutional crisis, combined with all the rest, would mean a breakdown of law and order to the point that it is more likely a new Constitution would have to be written by the successor state that arose in the place of the USA. Not because of inevitable “revolution,” but just because nobody would agree that the true spirit of our nation was represented continuously by whatever survived, just by virtue of it being too skewed by randomness.

    • Not necessarily. People only revise and rewrite things when they’re perceived to have largely failed. I don’t think the U.S. Constitution (and with it American law and politics) would definitely be drastically changed. The death of the male population wouldn’t be a symptom of a failure of the Constitution, it would have to be an inability of the system to provide for succession and even then I suspect most would rather have an ad hoc fix rather than the struggle to completely change things.

      • Melanie Koleini

        I suspect if the constitution survives, it would be amended to include a faster way to replace congressmen and to require either the Present or Vice Present be a woman (assuming male population recovers and the crisis could happen again).

  8. This is unrelated to this blogpost, but maybe you can answer it anyway or use it in a mailbag column: the title character of X-O Manowar is a Visigoth from a city that as far as I can tell is located in modern-day Italy. He was taken by aliens and, because of time dilation, only escaped back to Earth in the modern day. What modern-day country is he a citizen of?

    The place where he was born was under the rule of the Roman Empire. Would you have to trace a line of successor states and figure out what countries ruled the land to figure out where he’s a citizen of? When the Roman Empire broke down, is someone who was taken away before it broke down a citizen of the remaining portion of Rome? If you trace a line of successor states that way, he may end up being a citizen of some place far from where he was born such as Greece or Turkey.

    Or is he a citizen of the new state that occupies the land where he was born (Kingdom of the Visigoths, I think)? If so, does the fact that the Kingdom of the Visigoths was later reduced in size to just Spain mean he’s now a citizen of Spain?

    Or does he become a citizen of Italy since his birthplace is located in modern-day Italy? (Would that require that every change in ownership of Italy comes with a transfer of citizenship, all the way back to the 5th Century? Because I doubt it did.)

    Does it matter that he was under the rule of Rome but not actually a citizen?

    • Tricky! We’ll try to take a look.

      • @Ken Arromdee Tracing his citizenship through Rome to the Byzantines is interesting, and could matter, but it assumes he had Roman Citiznehsip to begin with. Citizens were a relatively small minority of residents of the Roman Empire. I’m not familiar with this character in particular, but as he was described as a Visigoth in the question this seems unlikely (though certainly possible, especially since you could buy Roman Citizenship).

      • Ken Arromdee

        Tim: He didn’t have Roman citizenship, but the same question arises if you combine being a Roman subject with James’ grandfathering in idea. If a country owns territory A, you come from A, you go onto a spaceship, and the country loses A while you’re on the spaceship, are you still a subject of that country?

        If the answer to that question is yes, he’s a Roman subject, then a Byzantine subject, then an Ottoman subject, then a Turkish subject, and then at some point Turkey passes a grandfathering law and he becomes a citizen.

        On the other hand, he certainly would have had the equivalent of citizenship among the Visigoths, if he had stayed around, since he was a powerful warrior and related to the king. Maybe there are competing claims–at some point, Rome was taken over by the Visigoths, but the Byzantines still would have claimed it (actually, did they? They later took Rome over but I don’t know if they claimed Rome at the time it fell), so at that point he could either be a citizen of the former or a subject of the latter, and could claim modern day citizenship based on a chain from either of those.

    • I’m eager to see James Daily’s answer if he ever does a write up, but my reflexive reaction is “None”. For most of history, the vast majority of people were not citizens of any nation at all.

      This was particularly true when dealing with Ancient Greece and Ancient Rome that very strictly demarcated citizens form non-citizens and being a citizen came with very meaningful perks such as voting. This even got a reference in the Bible where Paul speaks of being born with his Roman Citizenship and this has significance more than once.

      Having no source of citizenship for any nation, he would probably be a citizen of none, at least unless and until some nation naturalized him. Also, while having no citizenship is a rarit in the modern world (unlike the past when it was common), it can happen. It is possible to renounce citizenship successfully without simultaneous gaining citizenship elsewhere. Even involuntarily, citizenship can be stripped for criminal offense (Treason).

      • Having no source of citizenship for any nation, he would probably be a citizen of none, at least unless and until some nation naturalized him.

        My working theory was that it’s possible that he might be grandfathered in in some way. It’s true what you say that historically most people were not considered citizens (and indeed many countries did not even have a well-defined notion of a citizen; at best there was the distinction between a free man and slaves/women/children/etc). But at some point Italy decided to make most of its inhabitants citizens (or the male ones, anyway, I don’t know). If the law said “every free male born here before such a date is now considered a citizen of Italy” then that would have applied to him. Assuming that every subsequent citizenship law would have maintained his citizenship into the present day, then I think one could make an argument that modern Italy should recognize his citizenship.

        It’s true that he wasn’t physically present in Italy when the initial grant of citizenship occurred, but he was alive (albeit light years away). So arguably the law applies to him, as do all of the subsequent laws. If there were any formalities that he didn’t comply with (e.g. registering with the local authorities), I think that could be excused on the grounds of lack of notice and impossibility due to circumstances beyond his control.

        But that’s only my working theory. I haven’t yet researched the history of citizenship in Italy, and I may not be able to, depending on the availability of sources in English.

        Even involuntarily, citizenship can be stripped for criminal offense (Treason).

        Probably not in the US. That was a case of desertion rather than treason, but the constitutional definition of treason does not provide for denaturalization as a punishment. Instead, it only gives Congress power to create a punishment and even provides specific limits on that. Since the 8th Amendment applies to all punishments, I don’t think there’s any reason to think it wouldn’t apply to the punishment for treason. However, I’m sure there are countries where citizenship can be taken away as punishment for treason.

      • Greg Morrow

        Post-WWII, the UN went to some considerable effort to deal with the problem of the “stateless” (largely stemming from large number of displaced persons and refugees), and it is now extremely disfavored in international law for a person not to be able to claim at least one form of citizenship.

        In all likelihood, the relevant UN authority would ask around and find someone willing to take him, working from the various theories advanced above (Italy as territorial heir to his birthplace, Spain as sovereign heir to his birth nation, etc.)

      • Ken Arromdee

        Most of the theories have some form of complication. What little research on Wikipedia I did seems to say that the Visigoths ruled Spain until the Muslim conquest. Assuming that he has citizenship under the Visigoths (he’s related to the historical king Alaric after all), would it have gone away with the Muslim conquest? And does modern Spain consider itself the successor state to the Visigoths anyway?

        If you go by being in the Roman Empire, did people in areas conquered by others after the fall of Rome lose their “Roman citizen” or “Roman subject” status? If not, he could end up being a subject of the Byzantines, and trace that through successor states until you reach a country that declares everyone to be citizens.

      • @James Daily I like your idea of him being grandfathered in, and that may indeed be the correct answer. But the details of the law could matter very much. If it is written to cover Italy the nation and those born in Italy the nation then it would not apply to someone born under Roman rule, but if written to cover the Italian Peninsula then is can claim Italian Citizenship.

        As for having citizenship revoked, I was unaware of Trop, so thank you for pointing it out. I was thinking of Kawakita v. United States in which citizenship was indeed revoked as one part of the punishment for treason. However, that predates Trop.

    • David Johnston

      He is not Italian. Not by birth, since you can’t trace Italian citizenship back father than 1861, and not by birthplace, since Italy didn’t exist yet. And since there is no modern successor to the Roman Empire, he can’t invoke his nonexistent Roman citizenship. He is simply a stateless person. It happens.

  9. Is having a presidential election a constitutional requirement at all? Can’t the states go back to parliamentary election of the electors of the electoral college?

    • The answer to the first is “Yes”. The answer to the second is also “Yes,” but it doesn’t matter.

      Presidents are selected by precisely one method: election. The only time a person who was not specifically elected to be President becomes President is if the duly-elected President dies or is otherwise removed from office. Presidential elections happen once every four years, no more, no less.

      The reason the second doesn’t matter is because “election” in this sense means “Wins a majority vote of the Electoral College.” The states could certainly chose to do away with popular elections on Election Day (they won’t) but even if they did, that doesn’t do anything about the rest of it. The Electors, however selected, still cast their votes on the same day.

      So yes, the Presidential election is a constitutional requirement. It’s just that “election” does not actually have anything to do with the popular vote. It is constitutionally permissible to elect a new President without one, but you’d still need to comply with all the rest of the constitutional requirements.

  10. Pingback: World War Z | Law and the Multiverse

Leave a Reply

Your email address will not be published. Required fields are marked *