If Cheney dies, does Bush have to name a new veep,

or is it optional?
And can the Senate block his choice until the clock runs out, thus preserving the current Democrat next in line?

No he doesn’t have to appoint a new VP, but that would leave Nancy Pelosi next in line for the rest of his presidency. And it’s not the just the Senate that needs to approve his new VP. The House (which the Dems have a stronger hold on) would need to approve the appointment too.

Of course the same logic applies if Bush dies, choking on pretzels, and Cheney has to decide whether to pick a new veep. Always makes me wonder if Veep was such a good position to invent in the first place.

That’s not correct. Section 2 of the 25th amendment requires it.

But isn’t that worded to establish his legal authority for doing so, rather than making it a requirement? There’s no time limit specified. I read it as: **The president ** shall, rather than The president shall

Why do you read it that way? That seems a bit odd, since there are many different verbs that the framers could have used, but no other subjects. For instance, it could be “The president may” or “the president can” or “the president is able to,” but it’s not. That seems to indicate that the word “shall” has special significance, and as a result, we should read it as “The president shall.”

I don’t think we’ll ever know the intent of the framers (although I suspect they often left room for interpretation on purpose) and I think it unlikely that a president would choose not to appoint a veep, but the ultimate decider would be the Supremes, if it ever came to that. With nothing more specific than the word “shall”, I’m guessin’ that they would rule it the president’s perogative. But, until it happens, it’s a moot point.
If there’s a Constitutional scholar here, maybe they can set us straight.

Why not? The 25th amendment was only ratified in 1967.


In statutes and constitutions, the word “shall” denotes a duty of an office. If the authors of the 25th Amendment had intended it to be optional, they would have written “the president may…”

The fact that there is no time limit is interesting, though.

“Sir, the Constitution requires you to appoint a new Vice President.”
“I’ll get around to it one of these days!”

The 25th Amendment was proposed and passed in 1965, and ratified in 1967. We have full records of the debates in Congress; and Birch Bayh, the author of the Senate version, is still alive. So yes, we do know the intent of the framers.

Note that an earlier version of the amendment, also written by Senator Bayh, required the president to nominate a new vice president “within a period of thirty days thereafter” the previous vice president’s removal from office.

That’s interesting. Do you know why the time limit was removed from the final version? 30 days is a bit of a rush – but something like 60 or 90 days seems perfectly reasonable to me.

Mea culpa, that’s what I get for shooting from the hip and not thinking it through and checking my facts.
I still think it’s ambiguous enough to give a president lot’s of latitude and if it were forced to the Supreme Court they would side w/ the him.

Before the 25th amendment, there was no provision in the constitution for replacing a Vice President who died, resigned, or ascended to the presidency. We had to wait until the next presidential election to choose one. This is what happened with Harry Truman, when he became president after FDR died. He served the remainder of that term (3 years 9 months) without a VP. This also happened with LBJ, who served his first 14 months without a VP.

In all, there have been ten presidents who served periods of longer than a year with no VP in office.

This section of the 25th amendment has been used only twice… the first time was in 1973 when Spiro Agnew resigned. President Nixon nominated Gerald Ford to take his place two days later, and it took another 25 days to get confirmed.

The second time was a year later, when Ford became President following the resignation of Richard Nixon. Ford nominated Nelson Rockefeller to fill the post 11 days later (although a rocky confirmation process would last four more months).

A. R. Cane, the verb “shall” is almost always considered a mandatory, as it should be. It leaves no discretion. There is no doubt that the Amendment would be interpreted by the Court to mean “must” do this, not “can do it if he feels like it.”

The more cogent point is that, without a time limit, unless someone with “standing” to bring suit does so, no mechanism exists for the courts to force the President to name someone. Presumably, this would be handled through public political pressure.

Although it’s probably happened dozens of times in works of fiction.

From here: http://legal-dictionary.thefreedictionary.com/Shall+and+will

As has been pointed out, no time limit is specified, therefore I see ambiguity.

In 1974, Spiro Agnew resigned as VP, and Nixon was facing likely impeachment.

He knew the heavily Democratic Congress could and would reject his preferred choices (Carl Albert was next in line to become President at the time), which is why he picked a veteran Congressman, Gerald Ford. Ford just seemed like the Republican least likely to be rejected by Congress.

The U.S. Constitution, and its amendments, uses “shall” throughout in a sense of mandatory, not optional. For example, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. . . . The Senate shall have the sole Power to try all Impeachments . . . . All Bills for raising Revenue shall originate in the House of Representatives.”

1973, actually.