The current act is also controversial because it provides that an officer who is acting as president due to the disability or failure to qualify of an officer higher in the order of succession does so only until the other officer's disability or disqualification is removed. If this happens, the previously entitled officer can "bump" the person then acting as president.
[28] During testimony in 2004 before the
United States House Judiciary Subcommittee on the Constitution and Civil Justice, Akhil Reed Amar stated that this provision violates "the Succession Clause, which says that an officer named by Congress shall 'act as President ... until the Disability be removed, or a President shall be elected'".
[44]
In its 2009 report, the Continuity of Government Commission argued that as well as going against the language of the Constitution, bumping violates the doctrine of
separation of powers by undermining the independence of the executive from the Congress:
The Constitution on its face seems to stipulate that once a person is deemed to be acting president by the Presidential Succession Act, he or she cannot be replaced by a different person. This interpretation makes some logical sense as the provision would presumably prevent the confusion that would arise if the presidency were transferred to several different individuals in a short period of time.
It would also seemingly prevent Congress from exercising influence on the executive branch by threatening to replace a cabinet member acting as president with a newly elected Speaker of the House.
[29]
On a practical level, it is argued that this provision could result in there being multiple acting presidents in a short period of time during a national crisis and weaken the public legitimacy of successors.
[30][44] In a January 2011
Roll Call op-ed, Representative
Brad Sherman wrote,
[The bumping provision] creates a game of musical chairs with the presidency and would cause great instability. In a time of national crisis, the nation needs to know who its president is.
[45]