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Old 05-02-2020, 05:24 PM
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Yet another succession/scenario question


Both Trump and Pence get deathly ill and pass away in rapid order of each other. Assume both are incapacitated before dying.

What can the Republicans do to keep Pelosi from becoming President? I think she becomes President even when Trump and Pence are incapacitaed. And i'm pretty sure there are no provisions for:

Trump: "Uggggh I'm very sick, if me and Pence are incapacitated or die without appointing a replacement I hereby appoint ....uhhh...fuck...uhhh...Ivanka? as President. Or VP. Whatever."


Another Q, and this isnt terribly implausible. Both Trump and Biden, after being nominated, die or are terribly incapacitated befoire the election....who do you think the RNC and DNC would nominate? I assume Pence....but who would be the DNC choice?
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Old 05-02-2020, 05:55 PM
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I'd assume they'd have VPs by the time of nomination.

If Biden dies before picking a VP, I'm not sure who picks the next nominee. I'd guess it would be klobuchar or Buttigieg. They aren't picking Sanders sadly, so they'll pick a tertiary level nominee.
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Old 05-02-2020, 06:46 PM
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Title 3, Section 19(c)(2), of the United States Code says that Pelosi would be "acting President" until, "If his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies."

I think it depends on what the term "qualifies" means. I am assuming it means that once Congress approves a replacement Vice-President as requried by the 25th Amendment, then that person becomes President.

Just one small problem with that: the new VP has to be nominated by the President, so there's little, if any, chance of a Republican being chosen before the next Presidential election.

Hmmm...speaking of "his," I wonder if anyone would challenge Pelosi, or Hillary Clinton, or any other woman, becoming President on the grounds that the Constitution refers to the President as "he."
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Old 05-02-2020, 06:57 PM
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If Biden were to shuffle off this mortal coil, I'm pretty sure that a replacement candidate would be picked by the DNC. If trump and Pence both went down from Covid or a weird murder-suicide, Nancy would become pres and there wouldn't be a danged thing anybody could do about because by the time they tried she'd already be sworn in and that, as they say, would be that. She wouldn't be a candidate for election and any kind of legal challenge would be subject to the clock, running out of.
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Old 05-02-2020, 08:33 PM
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If Biden were to shuffle off this mortal coil, I'm pretty sure that a replacement candidate would be picked by the DNC. If trump and Pence both went down from Covid or a weird murder-suicide, Nancy would become pres and there wouldn't be a danged thing anybody could do about because by the time they tried she'd already be sworn in and that, as they say, would be that. She wouldn't be a candidate for election and any kind of legal challenge would be subject to the clock, running out of.
Agreed completely that if Trump and Pence went down immediately in a freak accident, Pelosi becomes president.

It's if they both got Covid, what kind of conditional shenanigans (if any) would Trump or the Republicans try and pull to prevent Pelosi from ascending if a VP can't be appointed (never mind even confirmed)

I can totally see Trump tweeting "Don't worry!! I have best doctors and worse case Pence and I have appointed VPs in our wills!"
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Old 05-03-2020, 02:46 AM
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Hmmm...speaking of "his," I wonder if anyone would challenge Pelosi, or Hillary Clinton, or any other woman, becoming President on the grounds that the Constitution refers to the President as "he."
I raised that question awhile back and was shot down. "He" includes "she" here, apparently.
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Old 05-03-2020, 07:12 AM
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Yeah, the President can't magically refute the constitutional lines of succession. If he wants a new VP Pence needs to resign or die first - the President can't fire him, he's elected by the voters just as much as Trump was - and then there's the nomination/consideration/vote process in Congress. So no end-around there. Pelosi becomes President.

In terms of nominees? If Biden dies before the convention we get a free-for-all in which a LOT of feelings are going to be hurt. But there's a process there that goes back more than 100 years.

If it happens AFTER the convention when Biden is the official nominee? It really falls to the DNC. While Biden's VP nominee is the logical pick there's no rule that guarantees it. There would at least be a short list of people for the DNC to pick from and each faction of the party could add to it.
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Old 05-03-2020, 10:35 AM
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IIUC, a VP nomination by Trump (if Pence dies 5 minutes before Trump) or by Pence (if Trump dies 5 minutes before Pence) would have to be approved by both Houses of Congress. So the job will go to Pelosi as long as the House D's say "Nay" to Jared(?).

Sure, someone will take the he/she problem to Scotus, but they'll lose on a 5-4 vote. Maybe.
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Old 05-03-2020, 02:33 PM
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The first part sets up an interesting constitutional dilemma. Trump and Biden both die nearly simultaneously. Nancy Pelosi becomes Acting President. She should then appoint (with the consent of Congress) a Vice President. However, once that VP is confirmed, he or she would immediately become President, thereby ousting Pelosi from her new job.

There would be a great temptation for any Acting President in that scenario to simply refuse to nominate a new VP.
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Old 05-03-2020, 02:34 PM
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*duplicate

Last edited by UltraVires; 05-03-2020 at 02:36 PM.
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Old 05-03-2020, 03:32 PM
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The first part sets up an interesting constitutional dilemma. Trump and Biden both die nearly simultaneously. Nancy Pelosi becomes Acting President.
Not if Pants survives, she doesn't.
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Old 05-03-2020, 03:38 PM
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Not if Pants survives, she doesn't.
Damn, I meant Trump and Pence.
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Old 05-03-2020, 03:41 PM
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They aren't picking Sanders sadly, so they'll pick a tertiary level nominee.
Which would all but ensure the Republicans would win. My read of the Bernie bros is grumpy but accepting. If their guy got sidestepped in this scenario it would be be 2016 all over again. Staying home or protest voting for the Republicans.

Re: OP. Pelosi is acting president per the constitution. Any legal shenanigans attempting to circumvent that would drag out past November thus being moot.
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Old 05-03-2020, 05:57 PM
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The first part sets up an interesting constitutional dilemma. Trump and Biden both die nearly simultaneously. Nancy Pelosi becomes Acting President. She should then appoint (with the consent of Congress) a Vice President. However, once that VP is confirmed, he or she would immediately become President, thereby ousting Pelosi from her new job.

There would be a great temptation for any Acting President in that scenario to simply refuse to nominate a new VP.
Wow, I hadn't even thought of all THAT. So now we would have the Republicans clamoring, nay TELLING her who to appoint. Saying that this was a duly elected Republican presidency and it should be the Republicans telling her to appoint as President.

Then we'd have all sorts of 'experts' saying the Dems should try and push through as much as they can in the interim (not that anything would get voted through)...you'd have AOC et al screaming about how Pelosi should do all sorts of executive orders...how RBG should retire now* while theres a Dem President....god what a wonderful clusterfuck this would all be

*I actually think this is the most realistic wacky thing that would happen.
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Old 05-03-2020, 06:21 PM
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Wow, I hadn't even thought of all THAT. So now we would have the Republicans clamoring, nay TELLING her who to appoint. Saying that this was a duly elected Republican presidency and it should be the Republicans telling her to appoint as President. ..
Pelosi could agree to choose a registered Republican and still achieve a thorough pantsing of MoscowMitch and the rest of the GOP power structure.

For example, she could say, "okay: I choose Merrick Garland." In your face, Mitch!

Mitt Romney would also be a good choice for sticking it to Trump's enablers. Same with Jeb.

However, so far as I can see, no matter how they whined, Pelosi would be under no obligation to accommodate them.
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Old 05-03-2020, 06:25 PM
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The most sensible thing would be for Pelosi to appoint the winner of the election in November to be Vice-President, and then that person is President for the end of the Trump term until January 20 when their own term starts.

There is a precedent for that. When Lincoln was thinking he would be defeated in the 1864 election he didnít think it appropriate to stay on until March in the middle of a war. He considered the idea that if McClellan won, Lincoln would ask Seward to resign as Secretary of State, Lincoln would appoint McClellan as SecState, VP Hamlin would resign, then Lincoln would resign, and under the Presidential succession law at that time, McClellan would become acting President until his own term started.

Then Sherman took Atlanta and Lincoln didnít have to think about this plan again.
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Old 05-03-2020, 06:28 PM
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I think if President Pelosi nominated a Vice President, that person would become the Vice President when confirmed. What makes anyone think that Pelosi would no longer be president when the new veep is sworn in?
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Old 05-03-2020, 07:16 PM
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However, so far as I can see, no matter how they whined, Pelosi would be under no obligation to accommodate them.
Pelosi should agree to let the Republicans in the Senate choose her Vice President.

And then say she'll nominate him as long as he provides acceptable documentation proving that he's a natural-born American citizen.
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Old 05-03-2020, 07:29 PM
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Pelosi should agree to let the Republicans in the Senate choose her Vice President.

And then say she'll nominate him as long as he provides acceptable documentation proving that he's a natural-born American citizen.
Long-form, of course.
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Old 05-03-2020, 07:30 PM
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I think if President Pelosi nominated a Vice President, that person would become the Vice President when confirmed. What makes anyone think that Pelosi would no longer be president when the new veep is sworn in?
Because the VP is 2nd in line to the presidency and the Speaker is 3rd. Once there is a VP, that person is now higher than Pelosi and becomes president. The line of succession after the VP only authorizes a person to "act" as president.
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Old 05-03-2020, 07:33 PM
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Originally Posted by Constitution
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, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
Once a VP is appointed, there is no disability of the VP, and therefore her capacity of Acting President is over.
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Old 05-03-2020, 09:06 PM
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Ooo. I think you're assuming facts not yet in evidence.

I'd want to see some back up on the fact that an acting president would be superseded by a newly sworn VP.

I realize the phrase 'acting president' is thrown around a lot, but I'd want some sort of determination on that before believing it's true. It's some that has, simply, never been put to the test.

Last edited by Jonathan Chance; 05-03-2020 at 09:07 PM.
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Old 05-03-2020, 09:22 PM
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I think there are a ton of unknowns. The various succession acts were never tested in court. I suspect if Pelosi found herself as president there would immediately be a court case Pompeo v Pelosi to test who had the rightful claim to the throne. The Court may say that Congress can't change anything regarding succession by statute, it would have to be by amendment. We don't know and will likely never really know.
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Old 05-04-2020, 11:11 AM
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I'm not sure why we're concentrating on the 25th Amendment. Under the scenario in question, the simultaneous deaths of the President and Vice President, wouldn't the 1947 Presidential Succession Act be the operative law?

Quote:
(1) if, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.
The 25th Amendment assumes the presence of the Vice President performing duties as the Acting President. The Speaker of the House plays no part except as the recipient of information. No mention of succession to Acting or "Real" President is made. The scenario of appointing a VP who would leapfrog over the Speaker as Acting President is impossible. This is true regardless of whether the PSA would hold up in court.
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Old 05-04-2020, 01:48 PM
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Re: scenario of Acting POTUS Pelosi nominating a Veep - The proposed VP must be confirmed by both houses of Congress. Anyone acceptable to the GOP Senate will be rejected by the Dem Reps and vice-versa, so Pelosi would retain the office till succeeded by newly-elected POTUS Biden. Congress elects leadership when a new session begins on 6 January IIRC so I don't know if an Acting President can also be Speaker of the House. No precedent!
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Old 05-04-2020, 02:39 PM
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I'm not sure why we're concentrating on the 25th Amendment.
There used to be a question, dating back to 1841 when William Harrison died in office, as to whether the Vice President became the President or just acted as President. The precedent was the Vice President became the President but this was never explicitly stated.

Until 1967, when the 25th Amendment finally made it official and said "the Vice President shall become President".

Which just brings up a new question. Okay, the Vice President becomes President. But does that same principle apply to anyone else in the line of succession?

Some would argue that the 25th Amendment establishes the general principle that becoming President by succession is the same as becoming President by election and that this principle applies to everyone.

Some (including UltraVires apparently) argue that "exceptio probat regulam in casibus non exceptis" applies here; that because the Constitution explicitly stated the Vice President becomes President and didn't explicitly state that anyone else does, the permanence of the office only applies to the Vice President.
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Old 05-04-2020, 02:42 PM
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Congress elects leadership when a new session begins on 6 January IIRC so I don't know if an Acting President can also be Speaker of the House. No precedent!
That would be a violation of the Ineligibility Clause, which says a member of Congress cannot hold any other federal office.
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Old 05-04-2020, 03:24 PM
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I'm not sure why we're concentrating on the 25th Amendment. Under the scenario in question, the simultaneous deaths of the President and Vice President, wouldn't the 1947 Presidential Succession Act be the operative law?



The 25th Amendment assumes the presence of the Vice President performing duties as the Acting President. The Speaker of the House plays no part except as the recipient of information. No mention of succession to Acting or "Real" President is made. The scenario of appointing a VP who would leapfrog over the Speaker as Acting President is impossible. This is true regardless of whether the PSA would hold up in court.
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Originally Posted by 1947 Presidential Succession Act
(c) An individual acting as President under subsection (a) or subsection (b) shall continue to act until the expiration of the then current Presidential term, except that--

(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and
(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.
Subsection 2 states that once the disability of the VP ends, the Speaker's presidency ends.

ETA: Better stated: The Speaker's acting as president ends. The act pretty clearly states that these downrange individuals are not president, they merely "act" as president.

Last edited by UltraVires; 05-04-2020 at 03:26 PM.
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Old 05-04-2020, 03:31 PM
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Re: scenario of Acting POTUS Pelosi nominating a Veep - The proposed VP must be confirmed by both houses of Congress. Anyone acceptable to the GOP Senate will be rejected by the Dem Reps and vice-versa, so Pelosi would retain the office till succeeded by newly-elected POTUS Biden. Congress elects leadership when a new session begins on 6 January IIRC so I don't know if an Acting President can also be Speaker of the House. No precedent!
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Originally Posted by 1947 Presidential Succession Act
(a)

(1) if, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.
(2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.
Any person who acts as president must resign his or her current position, so no dual acting president and Speaker.
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Old 05-04-2020, 04:07 PM
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The Court may say that Congress can't change anything regarding succession by statute, it would have to be by amendment.
Err.. Article 2, Section 6:
6: In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,9 the Same shall devolve on the Vice President, and the 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, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
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Old 05-04-2020, 05:59 PM
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Both Trump and Pence get deathly ill and pass away in rapid order of each other. Assume both are incapacitated before dying.
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Subsection 2 states that once the disability of the VP ends, the Speaker's presidency ends.

ETA: Better stated: The Speaker's acting as president ends. The act pretty clearly states that these downrange individuals are not president, they merely "act" as president.
I'm responding to the OP. The question is somewhat ambiguous but I am assuming that the President and Vice President both die before the 25th Amendment can be brought into play. That would make the Speaker the President. Not the Acting President, the President until the end of the term.

Whether the 25th Amendment comes into play in such a situation is unknown. As people must keep saying, this scenario is unprecedented and untested. My reading of the plain words say that it wouldn't. Which means that I can't see any way in which the PSA can simply be ignored in the discussion.
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Old 05-04-2020, 06:14 PM
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Ooo. I think you're assuming facts not yet in evidence.

I'd want to see some back up on the fact that an acting president would be superseded by a newly sworn VP.

I realize the phrase 'acting president' is thrown around a lot, but I'd want some sort of determination on that before believing it's true. It's some that has, simply, never been put to the test.
I see your point. There are holes in the laws and amendments that the drafters never addressed or even thought about. So we have the first provision:

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Originally Posted by Art 2, Sec 6
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,9 the Same shall devolve on the Vice President, and the 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, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
Congress did provide by law "declaring what Officer shall then Act as President" in a series of laws, the one still applicable with only minor changes is the 1947 Presidential Succession Act, which I will return to below.

However, in the mid 1960s after the Kennedy assassination, it seems as if Congress saw some deficiencies in the original Constitution and wanted to change it in a few ways in the 25th Amendment:

1. It wanted to provide that a VP could be nominated when the office was vacant.
2. It cemented into Constitutional law the Tyler precedent that a Vice President was not merely an Acting President, he was the full president, in cases of removal, death or resignation, but not inability.
3. It provided a distinct process for determining if a president was under an inability by the procedure described in the later paragraphs. In those cases a VP could act as president only temporarily.

https://www.law.cornell.edu/constitution/amendmentxxv

However, it did not reconcile this new amendment with the 1947 Succession Act passed prior to it which was not written with the 25th Amendment in mind causing some inconsistencies and questions.

So let's play again with our hypothetical. Trump and Pence each eat a bad scallop at a dinner at the White House and both die without having the time to say anything. According to the 1947 Presidential Succession Act, Nancy Pelosi, after resigning her Speakership and her seat in Congress "acts" as president.

I think it a pretty clear distinction that we don't apply the Tyler Precedent here. The "same shall devolve" language, quoted above for the VP was ambiguous and was debated by the early politicians. What did "same" refer to, the office or the powers? Tyler and the 25th Amendment solved that WRT the VP, however, the language is clear in the original Constitution and the 1947 Act that all downline officers only "act" as president.

Okay, so where does that leave us? Must Pelosi nominate a VP? The 25th Amendment states:

Quote:
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Well, it is clear there is a vacancy in the office of the Vice President. Although Pelosi only "acts" as president, it would seem that she has all of the duties and responsibilities, no? So, by a plain text reading (and I find it interesting and look for counter arguments), she "shall" then nominate a VP.

Now, let's ignore the practical politics and say she nominates Merrick Garland as VP. He has the support of the House and there is arm twisting to get 4 votes in the Senate. Don't fight the hypo. Now Garland holds the official title of Vice President of the United States. He then looks to Sec 1 of the 25th Amendment:

Quote:
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Garland ponders what to do. Pelosi is not president; she merely acts as president. The last POTUS was Donald Trump who has died. Therefore, Merrick Garland is now President of the United States. Pelosi is no longer Acting President per the 1947 Succession Act, and she is no longer Speaker or even a member of Congress.

Now, Garland, as President, must appoint a VP.

Any legal counterarguments as to why this is unsound?
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Old 05-04-2020, 08:23 PM
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Originally Posted by UltraVires View Post
According to the 1947 Presidential Succession Act, Nancy Pelosi, after resigning her Speakership and her seat in Congress "acts" as president.
Does that law say she must resign her seat in Congress, or can she just put it in abbeyance to avoid the Constitutional restriction on holding positions in both the legislative and executive branches? (Article I, Section 6, para 2)


Quote:
Okay, so where does that leave us? Must Pelosi nominate a VP? The 25th Amendment states:
Quote:
Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Well, it is clear there is a vacancy in the office of the Vice President. Although Pelosi only "acts" as president, it would seem that she has all of the duties and responsibilities, no? So, by a plain text reading (and I find it interesting and look for counter arguments), she "shall" then nominate a VP.
The main loophole I can see is that there's no time limit on how soon the nomination needs to be made. A similar loophole was exploited to deny Garland his seat on the Supreme Court. Of course, if she doesn't want to exploit that loophole, she could just continue to nominate people that she knows will not be approved by both Houses.
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Old 05-04-2020, 08:24 PM
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Well, the plain reading of the line "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President." suggests to me that it does not apply here. The President has not been removed from office. Nancy Pelosi is the President and is still in office to the end of the term. If she isn't President then how did she get the authority to name a Vice President?

The argument that she is the Acting President and therefore there is no President makes a mockery of the intent of both the PSA or the Amendment. Legislative intent is usually an important part of court reasoning (except for all the times they feel like ignoring it). You (UltraVires) are trying to make her President when convenient to your argument and Not President when that's convenient. I don't think that's going to fly.

Last edited by Exapno Mapcase; 05-04-2020 at 08:25 PM.
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Old 05-04-2020, 08:41 PM
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Any legal counterarguments as to why this is unsound?
That sounds pretty compelling to me.
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Old 05-04-2020, 08:50 PM
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The argument that she is the Acting President and therefore there is no President makes a mockery of the intent of both the PSA or the Amendment. Legislative intent is usually an important part of court reasoning (except for all the times they feel like ignoring it). You (UltraVires) are trying to make her President when convenient to your argument and Not President when that's convenient. I don't think that's going to fly.
HOw does it make a mockery of the Presidentical Succession Act? That Act doesn't say that the Speaker becomes President; it says that the Speaker "acts as President." She's not the President, but she can exercise all the powers of the President, which includes the power to appoint a Veep under the 25th Amendment.

As soon as a Veep is appointed and confirmed by Congress, then the reason for the former Speaker to act as President is removed: there is a Vice-President who has qualified as such, so the former Speaker's authority under the statute is gone. The new Vice-President becomes President under the 25th. The former President, Trump, has died, so the new Veep becomes Pres under the 1st section of the 25th Amendment.
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  #37  
Old 05-04-2020, 08:52 PM
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Does that law say she must resign her seat in Congress, or can she just put it in abbeyance to avoid the Constitutional restriction on holding positions in both the legislative and executive branches? (Article I, Section 6, para 2)
The statute requires that the Speaker shall, "... upon his resignation as Speaker and as Representative in Congress, act as President."
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Old 05-04-2020, 10:15 PM
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The main loophole I can see is that there's no time limit on how soon the nomination needs to be made. A similar loophole was exploited to deny Garland his seat on the Supreme Court. Of course, if she doesn't want to exploit that loophole, she could just continue to nominate people that she knows will not be approved by both Houses.
And that is a huge loophole. Let's take away the personalities here. Why would any Acting President ever nominate a VP that would take away the job of Acting President? The Acting President holds the most powerful position in the world and can only lose it, and will lose it, by nominating a VP successor.

Unlike Garland, which was a political battle between the Senate and the President, an Acting President would never have an incentive to nominate a VP, even if Congress was heavily controlled by his or her own party. This is a personal desire.
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Old 05-05-2020, 01:00 PM
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It seems like a Catch-22. Only a President can nominate somebody as Vice President. And a Vice President becomes President only when the office of President is empty.

So how can the office of President be empty if there was somebody in it to nominate the Vice President?
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Old 05-05-2020, 07:13 PM
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The 25th amendment says the president shall appoint.... It doesn't say a word about the acting presiddent. So she would either be the actual president and installed in that office and able to appoint a VP or she is only acting president and therefore lacks that power. Morton's fork.
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Old 05-05-2020, 07:45 PM
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The 25th amendment says the president shall appoint.... It doesn't say a word about the acting presiddent. So she would either be the actual president and installed in that office and able to appoint a VP or she is only acting president and therefore lacks that power. Morton's fork.
All of the president's powers are phrased that way. There's no point in ever having an acting president if they can do, quite literally, nothing.

Last edited by Lord Feldon; 05-05-2020 at 07:45 PM.
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Old 05-05-2020, 08:50 PM
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So how can the office of President be empty if there was somebody in it to nominate the Vice President?
Because an Acting President can execute the powers of the office without ever being an actual President.

https://en.wikipedia.org/wiki/Acting..._United_States
Quote:
However, should the presidency and vice presidency both become vacant, the statutory successor called upon would not become president, but would only be acting as president.
  #43  
Old 05-05-2020, 09:42 PM
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All of the president's powers are phrased that way. There's no point in ever having an acting president if they can do, quite literally, nothing.
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Because an Acting President can execute the powers of the office without ever being an actual President.
Exactly. Article II, s. 1, clause 6, provides that if both the Presidency and the Vice-Presidency are vacant, the officer designated by Congress can exercise the powers of the Presidency, without themselves becoming President:

Quote:
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the 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, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
Once you have a general clause like that in Article II, you don't have to have a statement for each reference to a specific power of the Presidency, "Oh, and remember, the officer acting as President can exercise this power too." The officer acting as President can exercise all the powers of the Presidency, such as vetoing bills, appointing officers, acting as commander-in-chief, and so on. Why would the powers under the 25th be something that the officer acting as President would be barred from using?
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  #44  
Old 05-05-2020, 10:33 PM
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Officer shall act accordingly, until the Disability be removed, or a President shall be elected
In the case of both the President and VP dying, then the disability cannot be removed and the Officer stays until the election of a new President. The selection of a new VP therefore would not make the VP automatically President.

That was why the PSA and the 25th Amendment tried to clarify the matter, although they seem to have mostly muddied the waters.

The issue always goes back to the meaning of "Acting President" in the PSA, for which there is no definition.
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Old 05-06-2020, 12:47 AM
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The issue always goes back to the meaning of "Acting President" in the PSA, for which there is no definition.
Mr Reagan was the exemplar.

For a simple solution to the succession conundrum, petition Mr Kim to nuke DC when the principal players are in town. A whisk broom clears many cobwebs, or a hot drill drains the swamp, or whatever. Have pollsters charted opinions on just vaporizing the place?
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Old 05-06-2020, 06:09 AM
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In most states if 2 people die within 5 days of each other they are legally considered to have died at the same time. That may not matter but it could.
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Old 05-06-2020, 07:06 AM
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In most states if 2 people die within 5 days of each other they are legally considered to have died at the same time. That may not matter but it could.
It varies by state, but AFAIK that's only relevant to estate law. I can't see how state inheritance laws would apply to federal Presidential succession.
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Old 05-06-2020, 07:13 AM
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If Trump dies and Pence goes into a coma, then Pelosi would become "Acting President", since nobody above her in the succession is able to act as President. But if Pence then recovers from the coma, the disability has been removed, and he takes over as President.

If Trump and Pence both die, then the situation is the same as it was for Harrison's VP: Pelosi now is the President, just like Tyler was, and remains so until a new President is elected (or until she resigns, or is impeached and removed, or ousted by the 25th amendment, or dies herself). Her nominating someone else as VP wouldn't change anything, because it wouldn't remove a disability: Pence is still dead, and the new person never had a disability.

Presumably, immediately after Pelosi resigned from the Speakership, the House would elect a new Speaker. If President Pelosi were unwilling or unable to appoint a VP (such as by one or the other house of Congress refusing to confirm anyone), and Pelosi's presidency were to come to an early end, then that new Speaker would succeed.
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Old 05-06-2020, 11:13 AM
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In most states if 2 people die within 5 days of each other they are legally considered to have died at the same time. That may not matter but it could.
Man, that knocks out a boatload of Ellery Queen stories.
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Old 05-06-2020, 01:13 PM
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Originally Posted by Exapno Mapcase View Post
In the case of both the President and VP dying, then the disability cannot be removed and the Officer stays until the election of a new President. The selection of a new VP therefore would not make the VP automatically President.

That was why the PSA and the 25th Amendment tried to clarify the matter, although they seem to have mostly muddied the waters.

The issue always goes back to the meaning of "Acting President" in the PSA, for which there is no definition.
You are quoting the Constitution as it existed prior to the 25th Amendment which provides for an appointment of a VP and its language that a VP becomes President.

A disability of a VP is removed by the appointment of a new one, no? The Vice President of the United States is an office. It is not Mike Pence. It is whoever the current officeholder happens to be. Why would #3 in line take precedence over #2 in line?


Quote:
Originally Posted by Chronos View Post
If Trump and Pence both die, then the situation is the same as it was for Harrison's VP: Pelosi now is the President, just like Tyler was, and remains so until a new President is elected (or until she resigns, or is impeached and removed, or ousted by the 25th amendment, or dies herself). Her nominating someone else as VP wouldn't change anything, because it wouldn't remove a disability: Pence is still dead, and the new person never had a disability.

Presumably, immediately after Pelosi resigned from the Speakership, the House would elect a new Speaker. If President Pelosi were unwilling or unable to appoint a VP (such as by one or the other house of Congress refusing to confirm anyone), and Pelosi's presidency were to come to an early end, then that new Speaker would succeed.
No, Pelosi is not "now the President, just like Tyler was...." The 25th Amendment states that the VP "becomes" president. The original Constitution and the 1947 PSA state that the downline officers only "act" as president.

It would be an odd construction of the 25th Amendment, enacted to ensure that a VP was in office at all times, even with an elected President not to apply when it is needed most: when there is no President or VP.

Right? Think of it. Trump dies, Pence becomes President. Under the 25th, we want him to appoint a VP to ensure continuity of government.

But if both Trump and Pence die, we don't want anyone appointed? Or we want the 3rd in line, the Acting President, to remain? It goes against the text, intent, and spirit of both the 25th Amendment and the 1947 PSA.

Last edited by UltraVires; 05-06-2020 at 01:15 PM.
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