# Gerald Ford's Confirmation--Unconstitutional? **URL:** \ **Category:** Factual Questions\ **Created:** [February 13, 2017, 2:36pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752 "2017-02-13T14:36:27Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Debillw3](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@Debillw3](https://boards.straightdope.com/u/Debillw3)\ **Post date:** [February 13, 2017, 2:36pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/1 "2017-02-13T14:36:27Z")
In a YouTube argument (I know, I know), someone insisted that Gerald Ford’s confirmation as VP “ignored the Constitution”. When I responded by pointing out that the 25th Amendment was followed and that the 25th is the Constitution’s only word on the subject, thus nothing was ignored, they responded that I was “ignoring and/or misrepresenting the Constitution and the events that took place”. Since that’s as specific as they got, I assume that they actually repeating talking points and have no answer of substance, so I figured I’d ask you intelligent people what, if anything, I missed. I know that some of the Senators and/or Representatives voted against confirmation because they didn’t think Nixon should choose his successor (a position that I find somewhat foolish, but they’re entitled to it), but I don’t see the Constitutional question, let alone what element of the Constitution was “ignored”. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 13, 2017, 3:04pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/2 "2017-02-13T15:04:54Z")
I suspect that the “violation” was the alleged violation of Article I, Section 6, Clause 2: > [@](#): > > No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time;… While Gerald Ford had been in Congress when the Vice-President’s pay had last been increased, it was determined by Congress that the Vice-Presidency was not a “civil office”, and thus he was not barred from it by the terms of the clause. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 13, 2017, 3:06pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/3 "2017-02-13T15:06:48Z")
They are probably mixing up the 25th Amendment and Presidential Succession Act (the latter likely being unconstitutional in its present form inasmuch as it puts legislators in line for executive office). ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 13, 2017, 3:29pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/4 "2017-02-13T15:29:37Z")
If it is unconstitutional, it’s an unconstitutionality that goes all the way back to the Second Congress, which passed the first succession law: [_An Act relative to the Election of a President and Vice-President of the United States, and declaring the officer who shall act as President in case of vacancies in the offices both of President and Vice-President_, Second Congress, Sess. I, Ch, 8.](http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=362) That statute provided that if both the President and the Vice-president died or resigned, then the President _pro tem_ of the Senate was the acting President; if there was no President _pro tem_, then it was the Speaker of the House. [QUOTE=Second Congress] _Provision in case of death &c. of president and vice-president_ Sec. 9 _And be it further enacted_ That in case of removal, death, resignation or inability both of the President and Vice President of the United States, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives, for the time being shall act as President of the United States until the disability shall be removed or a President elected. [/QUOTE] The Second Congress still contained some of the Founders, and Washington was President. Collectively, they appear to have believed that “Officers” in [Article II, Section 1, clause 2](https://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Clause_6:_Vacancy_and_disability) was not restricted to civil officers, such as Cabinet ministers, but had a more general meaning, including members of the Legislative branch. ---
**Author:** ![Debillw3](https://avatars.discourse-cdn.com/v4/letter/d/3bc359/32.png) [@Debillw3](https://boards.straightdope.com/u/Debillw3)\ **Post date:** [February 13, 2017, 3:38pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/5 "2017-02-13T15:38:28Z")
> [@Northern\_Piper](#): > > That statute provided that if both the President and the Vice-president died or resigned, then the President _pro tem_ of the Senate was the acting President; if there was no President _pro tem_, then it was the Speaker of the House. Keep in mind that Ford was none of the above (he was House Minority Leader & became VP by way of the 25th Amendment), which is what I figured their argument was (Nixon’s successor should go through the line, not be handpicked). However, given that their argument is repeatedly using the phrase “ignoring the Constitution”, it would be quite ironic if their entire argument was built around ignoring the 25th Amendment. > [@DSYoungEsq](#): > > I suspect that the “violation” was the alleged violation of Article I, Section 6, Clause 2: I’ve never heard that one before. I’m willing to give them the benefit of the doubt and say they were referencing that, though I get the feeling they’d never heard it either. Thanks! ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 13, 2017, 3:55pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/6 "2017-02-13T15:55:59Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They are probably mixing up the 25th Amendment and Presidential Succession Act (the latter likely being unconstitutional in its present form inasmuch as it puts legislators in line for executive office). Legislators are officers. The problem came about during the impeachment of Senator Blount and the question of whether or not members of Congress be impeached. IMHO it was settled by conveniently interpreting the impeachment clause as applying to executive officers and later judicial officers but not legislative officers because each House already had a way to expel a member.\* FTR I would argue that Representatives and Senators could still be impeached if for no other reason they could be barred from holding future offices including as a member of Congress. \*While the Senate is within their Constitutional rights to hold a trial for someone who has left office, they rarely do so, William Belknap being the sole exception IIRC. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 13, 2017, 4:39pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/7 "2017-02-13T16:39:37Z")
Judge [Walter Nixon](https://en.wikipedia.org/wiki/Nixon_v._United_States) was impeached despite having “left office” in the sense that he was in prison and unable to serve as a judge. His rationale for refusing to resign was that he didn’t want to lose his pension. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [February 13, 2017, 9:36pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/8 "2017-02-13T21:36:59Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Judge [Walter Nixon](https://en.wikipedia.org/wiki/Nixon_v._United_States) was impeached despite having “left office” in the sense that he was in prison and unable to serve as a judge. His rationale for refusing to resign was that he didn’t want to lose his pension. “Left office” means resigning so that you would not be removed through impeachment and conviction. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [February 13, 2017, 9:59pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/9 "2017-02-13T21:59:02Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Judge [Walter Nixon](https://en.wikipedia.org/wiki/Nixon_v._United_States) was impeached despite having “left office” in the sense that he was in prison and unable to serve as a judge. His rationale for refusing to resign was that he didn’t want to lose his pension. He was still a federal judge in good standing despite the fact that he was in prison at the time. If you’re too stubborn to resign or die, the only way to get out of that job is impeachment. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [February 13, 2017, 10:11pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/10 "2017-02-13T22:11:03Z")
> [@Northern\_Piper](#): > > That statute provided that if both the President and the Vice-president died or resigned, then the President _pro tem_ of the Senate was the acting President; if there was no President _pro tem_, then it was the Speaker of the House. I immediately noticed the “error” in the order of PotSPT and SotH. But I checked your link (it’s a page after that) and you’re right. The order in that act is reversed from today’s order. Learnin’ is fun. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 13, 2017, 10:22pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/11 "2017-02-13T22:22:32Z")
The other difference was that if there was no Prez or VP, the Prez pro tem or the Speaker didn’t fill out the term. They just acted as President until the Secretary of State could issue a notice to the states to hold a new election for the President. See section 10 of the Act. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 13, 2017, 11:17pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/12 "2017-02-13T23:17:18Z")
> [@friedo](#): > > He was still a federal judge in good standing despite the fact that he was in prison at the time. If you’re too stubborn to resign or die, the only way to get out of that job is impeachment. Sure. But he wasn’t actually presiding over cases or entering orders or anything. He was, to all intents and purposes, off the bench. ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [February 13, 2017, 11:55pm UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/13 "2017-02-13T23:55:22Z")
> [@ftg](#): > > I immediately noticed the “error” in the order of PotSPT and SotH. But I checked your link (it’s a page after that) and you’re right. The order in that act is reversed from today’s order. > > Learnin’ is fun. That was the rule from the 1792 to 1886: President Pro Tem, then Speaker of the House. In 1886 it was changed to Cabinet Secretaries in order of the creation of the posts. Then the current rule in 1949 reinserted the Speaker and President Pro Tem before the cabinet secretaries, but in reverse order. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 14, 2017, 1:13am UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/14 "2017-02-14T01:13:00Z")
Why did they reverse the order? ---
**Author:** ![RealityChuck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/realitychuck/32/195_2.png) [@RealityChuck](https://boards.straightdope.com/u/RealityChuck)\ **Post date:** [February 14, 2017, 1:36am UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/15 "2017-02-14T01:36:26Z")
The idea was that the House represented the people more directly. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 14, 2017, 3:43am UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/16 "2017-02-14T03:43:51Z")
But a Senator has been chosen by the people of the state. A Representative has only been chosen by the voters of one district in a state. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 14, 2017, 3:50am UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/17 "2017-02-14T03:50:53Z")
> [@Northern\_Piper](#): > > But a Senator has been chosen by the people of the state. A Representative has only been chosen by the voters of one district in a state. But the President pro tem is a meaningless honorary position, usually given to the oldest guy around, while the Speaker of the House actually runs the House and is the most important person in Congress. ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [February 14, 2017, 3:56am UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/18 "2017-02-14T03:56:18Z")
> [@Northern\_Piper](#): > > But a Senator has been chosen by the people of the state. A Representative has only been chosen by the voters of one district in a state. But originally senators were chosen by the legislatures. So they aren’t seen as being quite as close to the People. As an example, in the 1850s, the famous Lincoln-Douglas Debates were actually an attempt by Lincoln to convince the Illinois legislature to vote him to the senate. He wasn’t trying to get ordinary people to vote for him, just to influence the legislature. The other party was in power at the time, so it didn’t work. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [February 14, 2017, 4:06am UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/19 "2017-02-14T04:06:07Z")
Y’know, if people can’t be bothered to tell me what is it specifically I’m getting wrong, then I’m not taking their word for it. This sounds like one of those obnoxious fault-finding nitpickings some people engage in to tell themselves somebody’s ascent to office was not for real because of something sensible people will go :rolleyes: about. In the end, Congress acted as that they had confirmed Ford properly, the whole national apparatus acted as that he had been confirmed and succeeded legitimately, and _nobody challenged his accession when and where they would have_. > [@Northern\_Piper](#): > > But a Senator has been chosen by the people of the state. A Representative has only been chosen by the voters of one district in a state. By the mid-20th Century the Speaker was chosen _for the post of Speaker_ by an actual competitive process among the House members, while the Senate ProTem had become a post annointed by seniority with the vote a formality. ---
**Author:** ![Isilder](https://avatars.discourse-cdn.com/v4/letter/i/cc9497/32.png) [@Isilder](https://boards.straightdope.com/u/Isilder)\ **Post date:** [February 14, 2017, 8:24am UTC](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752/20 "2017-02-14T08:24:32Z")
> [@Exapno\_Mapcase](#): > > But the President pro tem is a meaningless honorary position, usually given to the oldest guy around, while the Speaker of the House actually runs the House and is the most important person in Congress. Not really the most important, but he does get to keep his government on track. He might not even be in the government caucus… If the numbers are tight the government puts a non-government member in as speaker, so that the government doesn’t lose a vote. (in houses where the speaker doesn’t get to vote in the first round. he might get a deciding vote but if the vote is lost by one, its lost… Really they should alter the rules to have the speaker participate in votes the same as any other member.) [Next page](https://boards.straightdope.com/t/gerald-fords-confirmation-unconstitutional/779752.md?page=2)