Based on a point raised in this Pit thread, suppose there were a disaster during a State of the Union address. The Secretary of the Interior becomes President. Is that person the actual president, or merely an acting president? And if the surviving Congressional Representatives were to convene and elect a Speaker, would that person then take over from the new president? Or is it the case that now that there is no vacancy, succession by the House Speaker is moot?
I think the Secretary of Interior would be just as legitimate as any other president. Once in, the filling of positions that were ahead of his position in the succession pecking order are irrelevant. They would be in line to succeed him, not his predecessor.
The relevant US Code says:
“This subsection” refers to the cabinet. Therefore, no matter what, our Secretary of the Interior can’t be booted our by any cabinet memebr.
For the Speaker and President Pro Tempore, the salient point is “prior entitled individual”. A person elected as Speaker post disaster is not a prior-entitled individual. I read that to mean that the Secretary of the Interior remains president for the duration of the current term, provided that the Senate Pro Tempore and the Speaker died in the disaster, or remain incapacitated for the remainder of the current term.
My impression, subject to correction is:
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Following the precedent set by His Accidency John Tyler after the death of Gen. Harrison, the man who becomes eligible for the Presidency under the line of succession becomes President, as opposed to “Acting President pro tempore” whenever the 25th Amendment or Act of Succession requires to be invoked. But…
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Someone merely filling the office during a temporary incompetency or disqualification is “Acting President” until that incompetency or disqualification is cleared up.
Precedent: Eight Vice-Presidents duly elected succeeded on the death of the incumbent President, and became President. Gerald Ford, nominated and confirmed under the provisions of the 25th Amendment, became President on the resignation of Nixon.
But George (H.W.) Bush, Vice President under Reagan, became Acting President when President Reagan invoked Amendment XXV Section 3 before undergoing surgery under general anaesthetic.
Here are three hypothetical scenarios with what I think is the accurate application of existing law:
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At a time when President, Vice President, Speaker, President Pro Tem, and most of the Cabinet are gathered for some formal ceremony, a freak tornado hits and kills them all. The designated Cabinet Member absent from the scene becomes President under existing law. He would presumably designate a new Vice President under Amendment XXV.
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Same scenario, but the Vice President survives, in critical condition and comatose. The designated Cabinet Member makes the appropriate notification and becomes Acting President until the recovery or death of the Vice President. If recovery, he then hands off the Presidency to the Vice President, who qualifies as President. If death, he becomes President, no longer “Acting.”
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The winning ticket includes a fully qualified and popular President in his 60s and a young, vibrant Vice President of 34, whose 35th birthday falls on Feb. 13 following his inauguration. But on Feb. 2 the President has a massive heart attack and dies within a few hours. At this point the Speaker of the House becomes Acting President and serves until the Vice President qualifies by law, at which point he becomes President.
Nope. Amendment 12 would forbid the vibrant 34 year-old from assuming the Vice-presidency.
So if the President and his party were stupid enough to nominate the 34 year-old and the ticket won, the VP candidate would be constitutionally unable to assume the office. Which would then trigger the 25th Amendment’s VP replacement provisions. Now, should the President die before Congress confirms his VP-designate, then the fun would begin.
The second doesn’t necessarily follow from the first. A 34-year-old can’t be sworn in as Vice President, but it isn’t clear that “failure to qualify” would void his or her election and vacate the office.
The state of West Virginia, by way of precedent, elected a 29-year-old man, Rush Holt, to a six-year Senate term beginning on January 3, 1935. He didn’t turn 30 until June 21, 1935, so he wasn’t eligible to be sworn in on January 3. The Senate, however, recognized his election as valid, and held his seat in abeyance until June 21, rather than declaring it vacant and allowing the Governor of West Virginia to appoint a replacement and call a new election.
I would expect the same thing to happen in the unlikely event that we ever elect an underage Vice President.
The literal language of the Presidential Succession Act provides that such an individual would “act as President”. In choosing this language, the framers followed the language of the Constitution, which empowered Congress to designate who shall “act as President” in the event of Presidential and Vice-Presidential vacancies.
However, the same law makes it clear that the Secretary would serve out the entire four-year term . . .
. . . so the answer to your second question is “no”.
In other words, the law doesn’t quite recognize your distinction between an “actual President” and an “acting President”. Rather, we have two possibilities:
(a) the Secretary “acts as President” for the duration of the four-year term
(b) the Secretary “acts as President” only until some prior-qualified and entitled individual qualifies, or a disability is removed.
The scenario you’ve outlined falls into the first category.
Since the Presidential Succession Act was enacted, the Twenty-Fifth Amendment has been ratified. It confused matters by creating another flavor of “Acting President”, which Polycarp discusses in his post. The persons “acting as President” under the Succession Act shouldn’t be confused with persons serving as Acting President under the Byzantine provisions of the Twenty-Fifth Amendment.
But the Senate has great power over the seating of its members. There is no equivalent power in the Executive branch regarding its elected offices. I don’t believe that if the VP is constitutionally unable to assume the office as of Inauguration Day that the President has the power to declare that the office is not open. Now certainly the newly-sworn President could refuse to appoint someone to the office of VP until after his running mate’s birthday and could at that time appoint the running mate subject to congressional approval, but in our hypothetical if the President should die before naming a VP then I don’t believe that the running mate has any claim on the presidency. Of course since it hasn’t and likely will never happen the question will remain forever open but I’m quite conficent that my scenario is the most likely outcome.
So essentially what you’re saying, Freddy, is that the older provisions mean by “act[ing] as President” is synonymous to “assume the powers and duties of President,” and effectively mean “become President” – but the temporary provisions defined in the later sections of Amendment XXV are setting up a new, distinct entity of “Acting President” where the person affected functions as President only for a limited time and then cedes the office back to the true President as he qualifies?
It’s a pretty fine point, but I differ with you. The Constitution contemplates that there may be occasion when the President (or person who would otherwise be President) is temporarily disabled or disqualified and contemplates someone holding that office on an ad interim basis:
I am saying that, yes.
In some ways, this is a distinction without a difference–after all both individuals (the one who “acts as President” under the Succession Act and the one who serves as “Acting President” under the Twenty-Fifth Amendment) exercise the full powers and duties of the office, with equal authority to sign and veto bills, grant pardons, and so forth.
But the two individuals serve under color of different rules (one under statutory law, the other under the Constitution), with different triggers, different service requirements (persons serving under the Succession Act forfeit their former offices), and different mechanisms concerning when or whether the office gets restored to an individual with a prior claim. I think it’s helpful to consider them as two different Breeds of Cat.
I think that hair is getting split too fine. President Deathbed would be sworn in as president 1/20. VP-wannabe Underage would not be sworn in as VP, because he is not constitutionally eligible to hold the office of President and is therefore barred from the office of VP. As of 12N EST on 1/20, the office of Vice President is vacant. I can’t envision a scenario whereby the office can be considered anything other than vacant. Mr Underage is not someone who would otherwise be president except for temporary disability or disqualification because he had no claim on the chain of succession.
Fascinating. Can I stir the pot a little? :D:D
If someone becomes an Acting President for an extended time and is then elected President in their own right, does the time spent as Acting President count towards the maximum Presidential length of service?
Example: A is elected and the day after inauguration becomes incapacitated but does not die. B becomes Acting President. 3 and a half years later, A recovers suffiently and resumes his Presidency. B is then elected in his own right and serves a full term. Can B then stand for President again? Does it make a difference if B is VP or not?
In most cases, it doesn’t matter. There is no “maximum Presidential length of service”, only a stipulation that you can’t be elected more than twice.
Length of tenure comes into play only in imposing the more stringent restriction that no person “who has held the office of President, or acted as President, for more than two years of a term to which another person was elected” can be elected more than once. This clause does indeed cover “acting as President” as well as being President.
To be sure, the 22nd Amendment predates the 25th (duh). The “acting as President” that it contemplates is “acting as President” under the Succession Act, not serving as Acting President under the 25th Amendment. Despite the fact that I belabored the difference between the two in my previous post, I’m going to argue that for purposes of the 22nd Amendment the two are the same, and that both would count toward the two years of service that trigger the one-election limit.
Yes, it counts. No, B cannot. No, it does not make a difference, though since 1967, it would require a very far-fetched set of circumstances that he would not be VP. (Of course, in this thread, far-fetched circumstances are de rigeuer [Izzat spelt rite? ;)])
The operative portion of the 22nd Amendment:
Note the “acted as president” clause in the middle of that cite.
In other words:
[ul][li]Anyone who has not served as President and otherwise qualifies may serve one or two terms.[/li][li]Anyone who has served a full term as President may be reelected and serve for ony one more term, consecutively or not.[/li][li]Anyone who served as President during a term to which someone else was elected may serve at least one term of his own. If he served as President for half or more of such a term, he may only serve a single term in addition. If he served less than half a term, he may serve two full terms of his own.[/li][li]To “act as President” is specifically specified separately from holding the office of President, and on any reasonable interpretation includes “Acting Presidents.”[/ul][/li]
It should be noted that the language prohibits election as President. It was hotly debated here in GQ some months ago whether a two-term ex-President being nominated Vice President to fill a vacancy in that office would in fact be barred by the intent of Amendment XXII.
For the record:
[ul][li]Only one living man, Wm. J. Clinton, is barred from the Presidency by Amendment XXII.[/li][li]Only three Presidents in history have ever been so barred: Clinton, Dwight D. Eisenhower, and Ronald Reagan. [/li][li]The unquoted remainder of the amendment specifically excluded the Presidents in office at the times Congress “proposed” the amendment (adopted it and sent to the states) and when it became effective (on ratification by the 36th state) – both of which turned out to be Harry S Truman.[/li][*]Only one man has served as Acting President under the provisions of Amendment XXV: George H.W. Bush, for one day.[/ul]
Well, after all this, I’m changing my answer to Liberal’s original question. His question was, would a Cabinet-member-turned-President be displaced by a Speaker elected after the fact? The Succession Act states that such a person stops acting as President “if a qualified and prior-entitled individual is able to act”. I read that the same way treis did–to mean “prior” in a temporal sense, as in someone in position and in the line of succession at the time the Cabinet member succeeded, but under a temporary disability or failure to qualify.
Apparently we were wrong–“prior-entitled” means “prior” in the sense of “having higher priority on the list”. The Congressional Research Service, in a staff report (PDF) prepared for Congress when it was considering succession changes in 2003, stated that:
So there you have it. The report discusses many other fascinating ramifications of succession, all of which will one day no doubt turn up on this Board.
Anyone that wants to discuss the succession of the presidency needs to read the XXVth Amendment very closely because there are two points often neglected in these posts:
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The amendment limits succession to the office to “officers”. LEGISLATORS ARE NOT OFFICERS!!! There are many precedences for this starting with the impeachment of Senator Blount. Despite what the Presidential Succession Act may say, the Speaker of the House and President Pro Tempore of the Senate cannot succeed to the Presidency and so the Secretary of State is in line after the Vice-President, although this may involve SCOTUS at some point.
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Whereas the Vice-President becomes President, officers later in the line merely act as President i.e. perform the functions of the office until an election is held. The Amendment does not specify whether or not there must be a special election or if the country waits until the next general election.
[QUOTE=Polycarp]
[li]Anyone who served as President during a term to which someone else was elected may serve at least one term of his own. If he served as President for half or more of such a term, he may only serve a single term in addition. If he served less than half a term, he may serve two full terms of his own.[/li][/quote]
Nitpick: your cite says “more than two years”, so anybody who served up to and includingtwo years would be good.
Wrong. When George W. Bush was undergoing surgery for a colon polyp (or maybe it was a colonoscopy, I forget), Dick Cheney temporarily assumed the position. Er, of President, I mean. Also, Reagan’s letter to the officers of the legislative and executive branch specifically did not cite the Twenty-fifth Amendment.
While there is significant scholarly argument in agreement with SaintCad, the point is far from settled. Even if a senator or representative is not an “officer,” the speaker and the president pro tem may be. The Presidential Succession Act of 1792, on which several Framers voted, certainly assumed as much. See, for example, “Who Are ‘Officers’?,” in Ruth C. Silva, Presidential Succession (New York: Greenwood Press, 1951, rpt. 1968), pp. 131-37.
The Twenty-Fifth Amendment says nothing about succession beyond the Vice Presidency. The stipulation that officers later in the line “act as President” is in the Succession Act, which makes clear that no election need be held until the next one that is regularly scheduled. (Earlier succession laws did provide for special elections.)