Line of Succession Question

What would happen in a “Designated Survivor” type scenario if all of Congress was to be wiped out and only the cabinet designated survivor lives and becomes President?

Would there be immediate elections to fill the vacancies? Would we go back to the States appointing new representatives (The Governor of each state?)?

Vacancies in the Senate can be temporarily filled by appointment, usually by the governor of the State. (Arizona is an exception in requiring an election.) Vacancies in the House of Representatives, however, can only be filled by election. Therefore Congress would not be able to pass any laws until elections could be held to restore the House.

A corollary of this is that the Vice President cannot be replaced until the House is reconstituted, since a nomination has to be approved by both houses of Congress.

All other positions, including Cabinet Secretaries and Supreme Court justices can be filled by Presidential appointment followed by confirmation by the Senate alone.

So in that event would the next person in succession serve as a defacto VPOTUS until one is approved by both houses of Congress?

Also unrelated to the original question… does a Vice President that is elected have to be approved by Congress? What would happen if Congress rejected it (partisan basis, etc)?

No. The vice presidency would simply be vacant, as was the case before the 25th Amendment set a procedure for replacement in 1967. It’s not like it’s a vital post.

Congress has no say over an elected Vice President, except that in the case that there is not an absolute majority for one candidate in the Electoral College, the Senate elects a Vice President from the top two vote-getters. (In the case of a lack of a majority for President, the House elects one from the top three vote-getters.)

There is a federal law governing what happens when over 100 House seats are vacant at the same time and how those vacancies can be guaranteed to be filled in no more than 49 days in ordinary circumstances (or on a previously scheduled election day if there happens to be one 49-75 days out). Without this law, it might take up to a year for all the vacancies to be filled.

Unfortunately, invoking this law requires the Speaker of the House to announce that over 100 vacancies exist. What happens if the Speaker is among those killed? There are often a handful of Representatives absent from State of the Union addresses for various reasons. Apparently, a majority of survivors is enough to constitute a quorum, and a majority of the quorum is enough to elect a new Speaker (and to pass laws in conjunction with the Senate). Even if there is only one survivor, he can elect himself the new Speaker if I understand the rules right. The newly elected Speaker also becomes next in line to the Presidency until a new VP is selected.

Now I’m imagining a situation where the Senate is split 50-50. Neither party would want to appoint a candidate from the other, since appointing an opposition candidate would throw control of the chamber to the other party. Presumably the Vice Presidency would remain vacant until some senator lost his or her seat to the opposing party, with a president pro tempore presiding over the chamber until that time. (Unless they couldn’t agree on a president pro tempore either…)

One of the problems with the Designated Survivor show is that it seems to ignore every other successor plan in existence. National Security and Homeland Security Presidential Directive 51 lays out what steps the Executive Branch should prepare for. Both Houses of Congress have since 9/11 had a designated survivor of their own. In 2016 Orrin Hatch, the current President pro tem of the Senate stayed away. All the Cabinet positions would have a hierarchy of the various deputies. In the real world, these acting Secretaries would be assuring continuity of government. And the governors would be stumbling over each other to appoint Senators, since that sets their start dates and seniority still pays a big part in the Senate. Well, maybe not since all the good offices were destroyed when the Capitol went. But still, it gets them into the news and is great publicity.

The House is a real problem. The rules of the House, Voting and Quorum Calls, [XX 5 © (4) (A)] talk about a catastrophic quorum failure report, “a report advising that the inability of the House to establish a quorum is attributable to catastrophic circumstances involving natural disaster, attack, contagion, or similar calamity rendering Representatives incapable of attending the proceedings of the House.” But I don’t see any talk about what happens then if the total number of the House falls below the 100 needed to constitute a committee of the whole that can get work done.

Actually the last Designated Survivor episode dealt with that exact scenario specifically in revealing a surviving designated member of Congress (Republican) (President is Democrat).

They made it sound like it was an unknown informal arrangement that he was surprised by. And no Senator, either. In the real world, they would all know about the others and have contingency plans to meet if anything happened.

Until a second new VP is selected. The first new VP would, I think, instantly displace the acting president and become president. A cabinet secretary can only act as president for as long as there’s a vacancy or disability. But as soon as there’s a VP, there is no vacancy, because (unlike a cabinet secretary) a vice president can become the actual president.

I’m not sure what you are talking about here. There’s no provision for a cabinet secretary to become “acting president” under the 25th Amendment; only the Vice President can do that. If the presidency is vacant, and anyone in the official line of succession VP, Speaker of the House, President pro tem of the Senate, Cabinet Officers in order of seniority of their Departments) is available, then that person becomes President, not acting President.

If the President is unable to discharge the duties of his office but still alive, then the VP can become Acting President with the consent of a majority of the Cabinet and approval of Congress. If there is no VP, then no one else is authorized to become Acting President. The VP would have to be replaced before he could become Acting President.

Only the vice president can become president. The farther-downs can act as president during a vacancy/disability in both offices, but merely act as president until either office is filled with an able person.

“…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…”

If an acting president appoints a vice president, there is no longer a case of removal, death, resignation or inability of both the president and vice president, because now there is a vice president.

No, in the case of a vacancy they “act as president” until the end of the presidential term. In the case of a failure to qualify or disability, they act until someone qualifies or the disability is removed.

Presidential Succession Act of 1947.

No, because the acting president can serve until the end of the term unless a person “prior-entitled” (section d.2) to the succession becomes eligible. A vice president appointed by an acting president would not be prior entitled.

If you want to draw a distinction between a President and an Acting President, then the 25th Amendment says that the President nominates a VP in the case of a vacancy in the office. If an Acting President is not really the President, then he couldn’t appoint a replacement VP so the circumstance wouldn’t arise.

It’s a bit of a catch-22. An Acting President can appoint a VP only if he is regarded as the official President, in which case the VP wouldn’t replace him. If he is only an Acting President, then he doesn’t have the power to appoint a replacement.

The “prior-entitled” language comes from the Presidential Succession Act. But once a VP is appointed, the Presidential Succession Act is void because Congress has no authority to authorize someone to act as president when the vice presidency is filled by a qualified and able person.

(The Presidential Succession Act is really kind of terrible legislation given that it would only be invoked in chaotic circumstances. The first two people it places in line have dubious qualifications as “officers,” and when it was written a VP could only be chosen by election.)

He’s not really the president, but is authorized by the Constitution to act as president, and do all of the things that the president can do. Otherwise the concept would be pointless.

In order to fill a VP vacancy, the 25th amendment requires the President to nominate a new VP and then Congress to approve the nominee.

So according to your theory, the “acting President” would in effect be handing in his resignation effective when Congress approves his nominee. If the “acting President” wanted to stay in office, he could do this by simply refusing to nominate a VP. There is no other procedure for installing a new VP without the President first nominating him.

You can’t have it both ways. If he is essentially the President, then as I said the new VP would not replace him. If he’s Acting President, then he can’t nominate a new VP.

But admittedly the 25th Amendment does not account for the fact that a President may technically be an Acting President. That would appear to be an oversight. Given the obvious contradiction in apparent intent of the two measures, in the actual event I would think the Supreme Court might need to decide the issue. (Of course, if there are any Justices still alive in the catastrophic circumstances we are imagining.)

Also, as Alley Dweller says, the 25th Amendment says that in the event of a vacancy in the Vice Presidency, the President “shall nominate” a replacement. However, it gives no time limitation for the nomination. If a new VP would replace the Acting President, there would be a strong motivation for him simply to refrain from nominating anyone.

Before the 25th Amendment, there was some question as to whether a VP who replaced a President was actually President, or merely Acting President. The 25th Amendment made it explicit that he was actually President.

Right, other than wiping out all humanity, killing every Congresscritter at once is pretty much impossible.

There would likely be a couple of Senators and maybe a dozen+ Reps, based upon past attendance.

Yes, I agree with this.

I’m not having anything both ways. The powers and the office of the presidency are separate. One can possess either without the other. You can have a president who is not empowered to do anything (someone who was incapacitated under the 25th Amendment, for example) or a non-president who is empowered to do everything the president can (someone other than the VP who succeeds to become acting president).