If Nancy Pelosi became Acting President because of the death or incapacity of the President and Vice President, wouldn’t she have to resign from Congress? And then, upon POTUS or VPOTUS reclaiming their roles, she’d have to get back into Congress via a special election, correct?
(This happened on an episode of The West Wing.)
How would she be acting President?
Yes, resignation. It’s set out in the relevant USC provision:
For what it’s worth, IIRC you don’t actually need to be a Rep to be Speaker of the House.
I likewise question what scenario could lead to the Speaker serving as “Acting President.” The 25th Amendment provides two scenarios (one voluntary, one involuntary) whereby the President can temporarily be relieved of authority and his powers and duties exercised by the Vice President as “Acting President.” The amendment specifically says the Vice President may serve in this capacity. If the Vice Presidency were vacant, there is no Constitutional authority for the Speaker of the House or any other official to serve as Acting President.
You must have missed this part of Article II of the Constitution.
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.
(emphasis mine)
I was just about to post that - you beat me to it Kent Clark!
But, to close the loop, 3 US Code s. 19, which I cited earlier, is the statutory provision that “the Congress may be law provide”, which sets out the succession if both the Prez and Veep are dead or unable to act. The succession goes through the Speaker of the House, the President pro tem of the Senate, then the Secretary of State and down through the Cabinet secretaries, in order of seniority of the creation of the departments.
That’s what I get for shooting from the hip! In the case of a Speaker temporarily taking over for a President “until the Disability be removed,” by whom and how would it be determined that the disability is removed? Is the President’s say-so enough?
I’m confused. Are we talking acting President? Trump and Pence are still alive but incapacitated? That’s a huge reach.
If she assumes the role of President because Trump and Pence are dead, then yes, she’s resign from Congress.
If we’re talking about a 25A situation, the president can officially inform Congress that he is ready to resume the office. If his cabinet disagrees and says he is not fit, then Congress decides the question.
If we’re talking about a situation where the president and VP are dead or removed from office, then the office doesn’t get filled until the next election.
Either way, the Speaker can not return to Congress unless she is re-elected to her old seat after she finishes acting as President.
That is doubtful. Sure it is not laid out in the requirements, but it has never even been tried otherwise. A couple joke votes were tossed around, but it is a unspoken requirement.
For example Be a natural-born citizen of the United States. Be at least 35 years old. Have been a resident of the United States for 14 years. Doesn’t say Human and does not say alive.
If we’re talking about a situation where the president and VP are dead or removed from office, then the office doesn’t get filled until the next election.
No, in that case (both are dead) the Office of President devolves onto the Speaker of the House.
This is where I’m confused though. The 25th Amendment only applies to the specific situation of a President yielding (or being forced to yield) authority to his VP. It does not contemplate a vacancy in the Vice Presidency.
The authority for anyone besides the VP to act as president derives (as was helpfully pointed out) from Article II Section 6. It allows Congress to establish a line of succession should both the Pres and VP be removed, dead, resign, or in the case of “inability.” Unlike the 25th, neither the Constitution or the Presidential Succession Act specifies a mechanism for determining that an “inability” exist in this situation nor how the original President could be reinstated should the “inability” be removed.
So in the West Wing example, where the VP is vacant and the President declares he is unable to exercise his duties, the Speaker resigns and acts as President. On the show Bartlett just later said that he was fine now, but what if the former-Speaker/Acting President disagreed? Who decides?
The Cabinet, maybe? When invoking the 25th Amendment, Bartlet asked the Cabinet to weigh in, and asked for them to unanimously consent to him temporarily stepping down.
The succession provisions for the presidency have always been considered to be vague. When President William Harrison died shortly after taking office, the first President to die, there was a real dispute whether Vice-President Tyler became President, or was just the “Acting President”. He stated that he was the president and assumed the office, and simply refused to deal wtih anyone who treated him as a mere “Acting President.” He even gave direction to White House staff that any correspondence sent to him as “Acting President” was to be returned to sender, unopened, marked with “Unknown at this address.” But there’s nothing in the text of the Constitution, prior to the 25th, that clearly dictated that the Veep became President.
It is an ambiguity. Suppose there’s a major accident, the Prez is in a coma, and the Veep is killed. The Speaker steps in as Acting President, that’s clear. But what happens if the Prez recovers from the coma, seems normal, and insists on taking back the office. But then the Prez starts displaying weird mental deficits, indicating that he may still be suffering from “inability”? Since there’s no Veep, doesn’t look like anyone could invoke the 25th Amendment.
And Article II, clause 6, doesn’t provide a mechanism to deal with that kind of inability, where the President may not be mentally fit for office. How and who decides if the inability is serious enough for the Speaker to step in?
(Oh, and just a bit off-topic - I don’t want to hear any US Dopers in the future critiquing the ambiguities in the Westminster parliament systems, and saying “If only there was a written constitution like the US has, these ambiguities wouldn’t exist.” Any constitution has some ambiguities in them. 
)
The 25th has two different modes of operation. Under Section 3, the president declares that he is temporarily unable to serve, then the VP acts as P. In that section, the disabled President gets his power back simply by saying “I’m good now.”
Under Section 4, the VP and a majority of the cabinet declare the president unfit. (This is problematic if there’s no VP to do it, though. BUT! The Amendment also allows Congress to legislate a different body to make the declaration. But Congress hasn’t done so.)
With Section 4, the (real) President can send a message saying “I’m OK now.” The Amendment then provides a process by which the Cabinet can disagree and then Congress decides who is right.
In West Wing, I believe President Bartlett declared under Section 3 that he was temporarily unable to serve. In that case, all he has to do is inform Congress that he’s ready again, and he’s back in. There’s no disputing it.
If the VP and Cabinet felt Bartlett was not ready to come back, they could use Section 4 on him, and eventually Congress would have to decide.
I don’t read that provision as cutting out the Veep. It just provides that Congress can set a different body to act with the Veep, instead of the Cabinet secretaries. It reads:
Otherwise, Congress could cut the Veep out of the process.
But the whole point here is that in the West Wing scenario there is no Vice President. The position is vacant due to the VP’s resignation earlier. The 25th Amendment requires a Vice President to work – Section 3 only allows the President to temporarily delegate his powers and authorities to the Vice President. Section 4 requires the Vice President to be involved in declaring the President unfit and only allows the Vice President to assume the duties and powers of the presidency should the President be so declared. The amendment does not contemplate at all a vacant Vice Presidency.
Sure, but you don’t read a provision of the Constitution in isolation from the other provisions. The 3rd section of the 25th Amendment has to be read in conjunction with Article II, clause 6. Congress can declare by statute who will act if there are vacancies in either office. If the Prez declares he is unable to act under 25-3, and there’s no Veep, then Article II, clause 6 governs, and Congress can declare who can act in the vacancy of the office of Veep.
The 25th and Article II, clause 6, read together, mean that there has to be someone to carry out the duties of the President if for some reason the Prez is not able to act. Any ambiguities in either article should be read in favour of someone being available to carry out the office of the President.