On an episode of West Wing, it was described how the 25th amendment to the US Constitution provides in section 3 that the President may step down temporarily by informing the President pro tempore of the Senate and the Speaker of the House of Representatives in writing that he is unable to discharge his duties. There was no Vice-President because he had resigned and there had not been enough time to replace him. The new president, then, was to be the Speaker of the House. But when he arrived at the Oval Office, he was told that he would first have to resign because he was not allowed by law to work for two different branches of the federal government at the same time. So, he did, and then he was sworn in by the Chief Justice of the United States.
Now, my question is, given that the TV show had it right, how does the Speaker become president by succession if he is no longer Speaker; i.e., he had already resigned? It seems that the 25th and the separation law conflict in this instance.
The resignation itself is the act by which the Speaker succeeds to the Presidency:
3 U.S.C. § 19(a)(1) (emphasis added). The former Speaker immediately becomes acting President, and takes the Presidential oath so that he can “enter on the Execution of his Office.” U.S. Const., art. II, § 1, cl. 8.
The episode “had it right” only in a broad and general way. The constitutional separation of powers is an implicit doctrine, which is abundantly evident throughout the Constitution and statutes, but it is not spelled out anywhere in the form that no individual may “work for two different branches of the federal government at the same time.” (Several early state constitutions, particularly the Massachusetts constitution that John Adams drafted, did contain an explicit provision to that effect. But the U.S. Constitution of 1787 does not.) The Constitution itself contains counterexamples: The Vice President is both the Chief Executive’s successor, and the presiding officer of the upper legislative chamber (and while the same individual would not play those two roles simultaneously, most modern Presidents have treated their Vice President as at least a de facto member of the administration). The Chief Justice presides over the Senate when it tries a Presidential impeachment.
There are a few particular constitutional restrictions on certain offices being incompatible – for example, “no person holding any office under the United States, shall be a member of either House during his continuance in office” (art. I, § 6), and “no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector” (art. II, § 1) – but there is no general constitutional prohibition on simultaneously holding more than one federal office or offices in more than one branch. For example, the Vice President could also head a Cabinet department; when the Republican party nominated Ronald Reagan in 1980, some news outlets reported a tentative deal with former President Ford in which Reagan would name Ford both as his running mate and, if elected, as Secretary of Defense. And federal judges – including sitting Supreme Court justices – have accepted temporary commissions from the President for diplomatic and other missions.
