And “shall” implies that all others “shall not”, which is the point I’m trying to make. If the president was required to act then a time limit would have been specified. I believe a legal interpretation would be on the “shall” as sole authority, vs. a requirement to act in a specific time or manner. To clarify, the congress, nor any other person, or political entity, can usurp that particular power.
Republican leaders at the time gave Nixon a list of three suggestions on who he might pick to replace Agnew; Ford was their third choice. The first two were George H.W. Bush and Nelson Rockefeller. It’s interesting to think how close Bush came to becoming President fifteen years early.
I did some research on the creation and passage of the 25th Amendment. There is no doubt that the Senate intended the “shall” in Section 2 as an action that the President was required to perform, and not simply to designate who shall do it. Senator Birch Bayh, the author of the amendment, and chairman of the Senate’s Subcommittee on Constitutional Amendments, said for the record in January 1964,
(emphasis added)
The Senate Report No. 1382, Presidential Inability and Vacancies in the Office of the Vice President, submitted in August 1964 to accompany the amendment, says, in its “Analysis” section,
The Senate Judiciary Committee submitted a favorable report on the amended resolution in February 1965. The committee explained some of the language changes:
As to what happpened to the first draft’s requirement that the nomination of the Vice President be done with 30 days of the office’s vacancy, during the Senate and House hearings on the amendment in 1965, Senator Bayh stated that he did not believe it was necessary “to grind everything to a halt to decide who the vice president is,” and the business would be “disposed of judiciously and quickly.” He also stated that both the President and Congress should use “their good judgment as to what would be reasonable.”
Actually, shall is quite a slippery word, and it can be one of the most ambiguous words in the law. Many modern legal-drafting guides favor avoiding it altogether:
Bryan A. Garner, Legal Writing in Plain English (Chicago: University of Chicago Press, 2001), p. 105. A leading legal-usage guide (by the same author) explains the problem with shall in more detail:
A Dictionary of Modern Legal Usage, 2d ed. (Oxford: Oxford University Press, 1990), p. 939, s.v. “words of authority.”
Nevertheless, the 25th amendment’s legislative history (some of which Walloon quotes in the post just before this post) makes clear that the clause “the President shall nominate a Vice President” carries several meanings, one of which is that the President has a duty, not just a power:
John D. Feerick, The Twenty-Fifth Amendment: Its Complete History and Earliest Applications (New York: Fordham University Press, 1976), pp. 193-96.
Once again Congress has set up a potential Donnybrook by assuming that politicians would always act reasonably. Since no time limit is specified, the President could put off the matter indefinitely. The only possible recourse would be for Congress to impeach such a president for failing to fulfill a constitutional obligation. Wouldn’t that be a fine mess?
As far as the second question in the OP goes (remember that one?), either house of Congress could simply dally (no time limit on them, either) or reject all nominees. So far as I can tell, there is no remedy for that short of blowing up the place to force a wholesale changeover of personnel. (And that, of course, is not a good idea, and I would never, ever recommend it. That should satisfiy whatever government agent is scanning bulletin boards for possible threats against the Government.)
That’s also the only possible recourse if there were a time limit and the President put off the matter indefinitely. Think about it.
Depends how you word the time limit. You could word the limit in such a way that if the President did not nominate someone (or the Congress confirm the nomination for that matter) within the specified period, then the person next in line to succeed the President shall become the Vice President. This would give some incentive to the President (and the Congress) to pick who they want (or at least who they can mutually agree upon). It could work much the same way that a bill becomes a law 10 days after it is presented to the President, whether he decides to sign it or not; It forces him to to sign it, or veto it. His inaction doesn’t preserve the status quo. Same could be applied here.
If you watch the show “24”, the 25th Amendment gets invoked about every four or five episodes. But that’s the disability provision.
Actually, I had thought about it, but chose not to mention it since that is not the law we actually have. In that case impeachment would (theoretically) be much easier since Congress could point to a very specific violation of the Constitution. As it actually stands, impeachment would be a less clear-cut case, since the President can say he’s still working on it, but “Nobody wants the job” or “Barney ate my nominee” etc., etc.
I have to say, this whole line of discussion confuses me. What would be the advantage for a President to refuse to name a VP? I can envision a scenario where the vacancy wouldn’t be a political liability. What possible incentive could President Bush (or anyone else) have for leaving the post vacant?
To drive up the bidding?
In theory, the VP of a lame duck president has an enourmous advantage of incumbency over challengers both inside and outside the party. Putting someone into a vacant VP slot would be as close as we get in this country to allowing an incumbent to name a successor. Given those stakes, a sitting president may feel it’s in his interest to leave the post vacant for some length of time. The bidding line is a joke, but certainly a president could use the offer of the vice-presidency as a carrot. How likely it would be to succeed given the need for Congressional approval of any appointment I don’t know.
At the moment I can’t think of any reason why Bush wouldn’t name a replacement. But suppose it was some other President who faced a Congress controlled by the opposition party and had a mid-term election in six months. He might want to wait until after the election in hopes that he would get a Congressional majority from his party which would make the ratification of a controversial VP nomination easier.
You’re right. It is hard to imagine what would be gained; especially at present, where dithering would keep a member of the opposition party at the head of the succession line.
I suspect we wouldn’t even be having this discussion if anyone besides GWB were president. (“In your heart, you know he might.”)
Just speculating, but if Cheney were to have a fatal heart attack now I think there might be, behind the scenes, pressure from the Republican Party for Bush to stall on choosing a new veep. All the current candidates are trying to distance themselves from Bush, they might not want to be considered for that reason. If he chose someone outside the current candidate pool would that create a new candidate? Perhaps one w/ an inside track? What would it do to the current race if he were to choose Condi Rice, or Gates? Assuming the the Feb. 5th super primaries determine a nominee, would that person want to be veep?
I think think it’s very possible that a situation might arise when Bush would want to leave the office unfilled, possibly for the remainder of his term.
It seems likely that none of the current Republican presidential candidates would want the job, their only hope at winning the general election is to run as far away from Bush as possible.
So the likely scenario if Cheney keels over tomorrow is for Bush to nominate a place-holder, someone who harbors no further presidential ambitions. Some respected elder statesman. Like his dad, maybe.
A similar scenario, although involving a presidential endorsement for an upcoming election (and written before the 25th Amendment) may be found in the novel “Advise and Consent.”
The President is trying to get a controversial Secretary of State nominee through the Senate. Opposition is being led by Orrin Knox, who has twice missed the presidential nomination by a handful of votes. The President writes out an endorsement which would guarantee that Knox would take the nomination (and likely the presidency) if he agrees to drop his opposition.
Even under the strictest reading, the President could effectively avoid nominating a new VP by throwing out the name of some near-universally-hated troll, confident that the Senate, figuring that six years of having the office so occupied was quite enough, would reject the nomination (then lather, rinse, repeat).
That might appease the republicans, but I suspect the dems. would object strenuously, if for no other reason than to make the circumstances even more difficult for Bush and the repub. candidates.
Don’t you think that serving 14 months as the Vice President would make someone a much more formidable candidate in the general election? It would elevate someone like Sam Brownback or Mike Huckabee to the national stage and give people a chance to see him in action. It would be a de facto coronation as the republican heir for someone like John McCain.
I believe that the last time that a second term VP didn’t get his party’s nomination was 1920, when VP Thomas Marshall chose not to run. Frankly, there are some interesting parallels between that election and the upcoming one… president Wilson’s popularity tanked, and Marshall was tainted by the hostility towards his administration.
On the other hand, two of the last three 2-term VPs to run for president got beat, albeit by very narrow margins (Gore and Nixon). GHW Bush won easily.
There were equivalent discussions here from the Clinton haters while he was in office.