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Originally Posted by The Dark
But having President pro tempore and Speaker of the House in the succession is unconstitutional, since the Incompatibility Clause (Article I, Section 6, Clause 2) states that no Senator or Representative may be appointed to another office during their term. The way the succession acts try to get around that is to state that taking the oath of office shall be held to be a resignation of the prior office, but I could easily see someone with a black-and-white view of things taking the stance that they can't be appointed in the first place, and refusing to go along with the appointment of either of the legislative successors.
There's also the controversy of "bumping." The PSA allows for a "higher-ranking" position to take over from a "lower-ranking" one. For example, the Secretary of Labor becomes President. New congressional elections are held, and the new Speaker of the House bumps the President and becomes the new President, because s/he's higher in succession than the Secretary of Labor. This violates Article II, Section 1, Clause 6 of the Constitution, which states that an Officer shall hold their position until disabled or a new President is elected.
Both of these problems step into the morass of separation of powers; they create situations where the legislative controls the executive or is able to wield undue influence on the executive, and could be seen as justification for discarding the entire law.
State legislators are not eligible in the PSA and never have been; they are ignored by 3 US Code 19. The order is Speaker, President pro tempore, and cabinet secretaries in order of their department seniority (State first, either Veterans Affairs or Homeland Security last depending on whether it's classic T2K or current timeline T2K17). It's a matter of debate whether deputies or "acting" secretaries are eligible, since they were not confirmed as Secretary by Congress. They definitely were NOT eligible until 2006, when the language changed (the 1886 Act stated Officers had to be approved by the Senate to hold the office that formed the basis of their claim to the Presidency, while the 2006 Act shuffled words around so that Officers have to have been approved by the Senate to hold an office). Acting secretaries have claimed to have been added to the succession, but it's never been announced and its legality has never been examined by a court.
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All valid points and to throw yet more garbage in the pot, you have the mass of Continuity of Government plans which includes state legislatures in the Presidental Succession (or at least the majority members).
What this boils down to is this, the President has the authority to appoint an assistant or deputy Secretary into the vacant Secretary slot, it does require Senate approval, but it is noted that a quorum is needed, while not explicitly mentioned, COG has plans for a committee, to approve these emergency appointments.
There has always been a lot of debate about inserting the Speaker of the House and President pro Tempore of the Senate into the succession, they are not members of the Executive Branch, but the PCA is fairly clear that they must resign their Legislative positions, in theory removing them from succession, in order to be sworn in as President. But COG allows for this as part of the swearing in and SCOTUS has never ruled that this is unconstitutional.
As for the appearance of the state legislatures, this is more along the lines that if the governor and the deputy governor die, then they assume the positions and once sworn in, if necessary, they enter the Presidental Succession.
The premise is that the Constitution, the PSA and COG ensure that there is a chain of succession, it is convoluted, and I have yet to find a single publicly available document that states A-B-C etc, what you have is a hodgepodge of documents, laws, regulations and plans all seemingly at cross purposes.
Confused yet?