West Wing: Speaker resigns upon becoming president via 25th Amendment?

[Ace309]

Last night, Bravo re-ran the excellent episode of the West Wing where Zoe Bartlet is kidnapped. At the end of the episode, President Bartlet invokes the 25th Amendment, declaring himself unfit to govern the country. Because the Vice President had recently stepped down in the wake of a scandal, the order of succession put the President’s political enemy, the Republican Speaker of the House.

One of the president’s procedure nuts takes the opportunity to force the Speaker to resign, arguing that he can’t work for two branches at the same time.

I assume that the reasoning is valid, but would the Speaker in this case have to resign his seat in the House entirely, or would he be permitted to take a ‘leave of absence’ while serving in the office of the President and later resume his position?

[Kent_Clark]

If I recall correctly, TWW was correct in saying there’s a federal law that prohibits working for two branches of the government at the same time.

The problem with a leave of absence is that you’re still employed, you just aren’t showing up or getting paid during that time.

And the procedure nut didn’t “force” the Speaker to resign. The Speaker agreed with his argument.

[Ravenman]

The Constitution prohibits someone from serving as an officer in two branches of the government at the same time. I am not sure that it has ever been tested as to whether a member of Congress may take a leave of absence for a short-term appointment… but keep in mind that the Constitution does not explictly require that the Speaker be a member of the House. Theoretically, the Speaker could resign, serve as president, resign again, and be reappointed Speaker as a private citizen.

Article I, Section 2, Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 6, Clause 2. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

[Billdo]

Article II, section 1 of the Constitution provides that on the death or disability of both the President and VP, the powers of the President succeed to an officer designated by law :

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.

Congress has passed such a Presidential succession law, 3 USC 19. Subsection (a)(1) provides:

(a)(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

Subsection (b) provides a similar requirement for the President pro tempore of the Senate to resign before acting as President.

Subsection ©(2) provides that where someone is acting as President because Presidential and Vice Presidential disability, he will act only until the removal of the disability of either of those.

So, if a President was unable to because of a short term disability, and the House Speaker and President pro tem didn’t want to resign those positions, they could each refuse to resign, and the Presidential power would devolve on the next qualified cabinet officer as provided in 3 USC 19(d).