There seemed to be a a few minutes today after Pence was sworn but before Trump was sworn in that we had this very odd combination. 1: Is this actually what we had, 2: if Obama resigned during that time, would Pence be president, and 3: would that have excluded Trump from becoming president.
Under section 1 of the 25th Amendment to the U.S. Constitution, Mike Pence would have succeeded to the remainder of President Obama’s term - which was measured in minutes. Pence’s presidency would have no effect on Trump’s ability to become president. Because would-be President Pence’s term would have been less than two years, under the 22nd Amendment, it also wouldn’t have affected Pence’s ability to be elected president or to become vice president later.
I don’t think there was any moment when Obama was President and Pence was Vice-President. Both Trump and Pence took office at the same moment, even if they took the oath at different times.
Nixon’s letter of resignation was addressed to Henry Kissinger as Secretary of State “in keeping with a law passed by Congress in 1792.”
That’s a little odd since Article 3 of the 25th Amendment (1967) reads:
So either way the President can’t simply shout “I resign” over the new VP’s shoulder and make him or her President. A letter has to be written and transmitted.
How would the sitting President get the letter to the right person(s) in the small interval between oaths? How would they prove such a thing? Even in a conspiracy, why would anyone believe that it happened?
To complicate matters, no law requires the taking of the oath to become President. Some people argue that the transfer of power is automatic. I remember people arguing over this ever since Kennedy’s assassination. If Johnson became President as soon as Kennedy died, then the new President, Trump in this case, became President at noon today, January 20, no matter what else happened. You could conversely argue that an automatic transfer would therefore make the VP President, but no law says that either.
No matter what, the elected and Congress-certified President will become the President as everyone expects. It only happens otherwise in bad political novels.
Upon further reflection, I think this is the right answer. I withdraw my answer above. If Obama had resigned a few minutes before Trump’s term began, Biden would have been president for those few minutes.
Sometimes you can’t fight the hypothetical. The OP said the president resigned in that interval, so he did.
Indeed.
I agree with you that Giles’ assessment is the correct one. But your scenario raises an interesting question. If Pence had become President under this scenario, he would have left the office of Vice President. So presumably he would have had to retake the VP oath of office when Trump became President.
Exactly. The Twentieth Amendmentsays that the terms of the current President and Vice-President both end at noon on January 20. The fact that Pence took the oath a few minutes before Vice-President Biden’s term expired does not mean that he became Vice-President before noon. It just means that he’s taken the oath of office before he became Vice-President, consistent with Article VI of the Constitution.
This becomes such a mess that it needs to be flow-charted.
Pence is sworn in as VP. Obama resigns. Pence becomes President.
Again, this can’t happen. If Pence is the legitimate VP, Obama’s term is over. He can’t resign as President because he is no longer President. But say that Obama’s term somehow continues after Pence is sworn in because there can never be an interregnum in the office. Now what?
Trump is sworn in as President.
Uhn-uh. You can’t swear in a new President if there is a legitimate sitting President. That’s not just an unwritten response to a hypothetical; it’s an absurdity.
Pence is President. He laughs long and heartily and stays President.
What is Trump gonna do about it?
Pence is President and immediately resigns. There is no Vice President. Therefore, Orrin Hatch, president pro tempore of the Senate becomes President. 86-year-old Orrin Hatch.
Try again.
Pence is President and nominates Trump as his Vice-President. The 25th Amendment says:
Does Congress confirm Trump? Let’s say they do. So he becomes VP. Pence magnanimously resigns. Trump then nominates Pence as his VP. Both houses of Congress then have to confirm him. Then and only then does he take the oath of office.
Can anyone imagine any of this happening in real life?
I think you’re incorrect in referring to Section 3 of the 25th Amendment. The purpose of Section 3 of the 25th Amendment is to allow for temporary transfers of power from the President to the Vice-President, when the President is incapable of acting. That’s made clear by the reference to the VP as “Acting President”, not as “President”, and by the fact that the President can reclaim the office by sending a second letter.
That’s how Section 3 of the 25th has been understood when it was invoked by Presidents Reagan and Bush II when they underwent colonoscopies, and of course the well-known case of President Bartlett.
Resignation is different. It’s the formal and irrevocable surrender of the office of President, upon which the Vice-President, whoever that may be at the time, becomes President, pursuant to Section 1 of the 25th Amendment. Presidential resignation was not specifically addressed by the Constitution prior to the 25th Amendment, but the Second Congress addressed it in the 1792 statute referred to in relation to Nixon’s resignation letter: 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.
Section 11 is the relevant provision of the 1792 Act, which reads:
[QUOTE=Second Congress]
Sec. 11. And, Be it further enacted, That the only evidence of a refusal to accept or of a resignation of the office of President or Vice President, shall be an instrument in writing declaring the same, and subscribed by the person refusing to accept or resigning, as the case may be, and delivered into the office of the Secretary of State.
[/QUOTE]
That same provision is now found in the United States Code: 3 U.S. Code § 20 - Resignation or refusal of office.
That’s why Nixon sent the letter to Kissinger, not to the President pro tem of the Senate and the Speaker of the House: he was resigning, triggering Section 1 of the 25th, not temporarily incapable of carrying out the office, which would trigger Section 3 of the 25th.
Interestingly, that same 1792 Act took a different approach to vacancy in the offices than is the case today.
Back then, if both the Presidency and the Vice-Presidency fell vacant, then the President pro tem of the Senate (or failing him, the Speaker of the House) acted as President, but the Secretary of State was required to call for new presidential elections, by notifying the executive authority of each state and requiring them to have their states select new Electors, by the next November.
Once the electors had chosen a new President and Vice-President, they would start new terms of office, rather than fulfill the term of the previous President and Vice-President.
If that had ever happened, the presidential election would have fallen out of sync with the Congressional elections.
See sec. 10 of the 1792 Act.
Well, there is Article II, Section 1, Clause 8 of the Constitution, which says:
You’re right that the incoming President doesn’t have to take an oath to become President, but he/she is required to take the oath before exercising any of the powers of the office.
Northern Piper, thanks for the corrections.
The bottom line, though, is still that a resignation must be transmitted in writing. It’s interesting that the language states that the letter must be “delivered into the office of the Secretary of State.” Is that a term of art? There is not a current Secretary of State; Kerry resigned along with the rest of the cabinet, although I can’t quickly find the exact moment they did so. Without a current Secretary, whom is the letter delivered to?
For this hypothetical, the important takeaway is that the Presidency doesn’t end with a declaration. Otherwise every Presidency in U.S. history would have ended when the President threw the papers on his desk up in the air and screamed “I quit” before laying his head on Lincoln’s desk and sobbing. A lot of them wouldn’t have lasted out the week.
Easy. The president writes his letter of resignation in advance, seals it in an envelope, gives it to the lawfully designated receiver, and instructs them open the envelope the moment the vice president is sworn in. If proof is required, he could further instruct the recipient to make a video recording of them opening and reading the letter.
Of course, it’s not like there would be any time for the recently promoted vice president to actually do anything before his term ends and the new president’s begins. There probably wouldn’t even be any time to inform anyone about the shenanigans until after the inauguration ceremony. In the end, nothing significant would have happened, except that Pence would overtake Harrison in trivia lists as the US’s shortest-serving president.
BTW, I’m proud of you guys that this discussion has gone on so long without a mention of David Rice Atchison. Apparently, that one particular piece of ignorance really is finally dying.
You’re just looking in the wrong thread:
http://boards.straightdope.com/sdmb/showthread.php?t=816873
How are you getting around the reality that the VP is now President and the putative President’s oath is meaningless?
This is extremely hard to parse semantically, and I think as it stands, with ambiguity of sarcasm and definition of the state “ignorance” in SD discourse as being positive or negative (lack of it is good (something to be proud of, unsarcastically) because it prompts posts, but it is undesirable/bad/not “to be proud of,” unsarcastically (as understood in the SD Prime Directive).
The meaning of your post is either underivable or the post is a tautology (my tentative conclusion).
But… a tautology, stated sarcastically, does, or is intended to, resolve logically. Yikes.
It is similar to understanding Carly Simon’s illustration of vanity.
No, it’s extremely straightforward.
Perhaps your problem is never having heard of David Rice Atchison.
There is an Acting Secretary of State, according to the order of precedence established for State Department officers. Right now that appears to be Tom Shannon, Under Secretary for Political Affairs, the number four person at State.
The president-elect’s oath isn’t meaningless; it’s what terminates the previous presidency. As stated upthread, the promoted VP serves only the remainder of the previous president’s term. This ends as soon as the president-elect is sworn in.