Do you mean under Section 3 of the 25th Amendment? I don’t see why not. There doesn’t appear to be any limit to the “powers and duties of [the] office” that the Vice President is able to discharge while Acting President.
That actually might work out well for Trump if he survives.
Obviously Trump could resign sometime in December after losing the election and Pence could pardon him then as well.
2020 is turning into one heck of a year.
Because regardless of what the law says, it’s terrible politics. It’s not like the Republicans are looking at a landslide victory; they can’t afford to lose a single percentage point of support. Uncertainty over who their candidate is will be enough to cost them the election.
Electors aren’t just random schmoes. The way you get chosen to be an elector, is because you’ve already proven that you’re really loyal to the party. The party chose those people because they know that they won’t vote against what the party wants, at least not when it matters. If the party says “Vote for Pence instead”, that’s what the electors will do, not because they’re obligated to, but because that would be what they would want to do.
You’re not even doing that. You are voting and then hoping that your state government appoints appropriate people to the Electoral College. The ways that states choose electors vary by state. There is no federal law saying that a state’s electors have to vote for the person who won the popular vote in the state.
The Republic survived Carnahan’s death in 2000 and Paul Wellstone’s death under very similar circumstances in 2002. What’s terrible politics is to try to change the law a month before the election.
OK but what happens if both Trump and Pence die after the Electoral College voted for them but before the inauguration?
If we assume Trump actually dies well before election day there are two interesting dynamics among the voters.
- The supposedly large crop of R voters who’d decided Trump was beyond the pale and therefore had intended to vote this time for Biden + a Republican downticket will suddenly be forced to reconsider. Is Pence enough of a traditional Republican to overcome their objections to Trumply overreach, or is he too tainted by association with Trump? My personal bet is that to the degree this group actually exists, the vast, vast majority will decide Pence is decent enough to vote for. IOW, for this group of voters, Trump dying helps the R presidential candidate and hurts the D presidential candidate.
- The definitely large cohort of MAGAs will have irretrievably lost their figurehead, and too late for a serious replacement to appear. Pence is stale traditional R elite = boring and not at all serving the MAGA movement. Will the MAGA enthusiasm balloon just deflate to almost nothing? My personal bet is that many will decide Pence is a loozer and go back to not paying attention to politics. IOW, for this group of voters, Trump dying helps the D presidential candidate and hurts the R presidential candidate. Although the idea of giving Trump a gigantic postumous WIN!!! by voting R en masse is another possible reaction.
Agree completely that trying to change law now would be very bad / dumb.
In the case of Carnahan, the relevant written long-standing law totally covered the actual situation. So doing what was legally mandated was legally uncontroversial even if a few folks who hadn’t been paying attention found that politically controversial.
The issue w Trump today as I see it is that between the Feds and the 50+ states / territories / etc., there are at least some permutations of various people dying between now and Jan 21 that are not provided for in clear statute. Figuring out what to do will therefore be legally controversial in addition to being exceedingly politically controversial.
And that’s before we consider that one senator from a minor state is small beer compared to POTUS.
Assuming there isn’t enough time for a replacement VP to be nominated and confirmed, the Presidency devolves on to the next person in line; Nancy Pelosi. She would finish out Trump’s term of office.
On Inauguration Day, with no President elect or Vice President Elect to assume the office, the Presidency would devolve to the next person of the list. That would be the Speaker of the House - which would not be Pelosi as she would have had to resign her seat in Congress in order to assume the Presidency. So the new President would depend on which party got a majority in the House in the election and who they chose as their Speaker (with the knowledge that this individual would become President).
Next in line is not “Nancy Pelosi” but the Speaker of the House.
Not necessarily the same thing because will we have a new Congress sworn in on January 3. But most likely it will indeed be Pelosi.
Under the above circumstances, Pelosi might choose to not accept the Presidency. She’s pretty much a lock to get re-elected and very likely to remain the Speaker of the House for the next two years. She might decide that’s a better opportunity than serving as Presidency for thirty-six days.
If she did so, Senator Chuck Grassley would become the President for the remainder of Trump’s term. If Grassley decided to pass, the next person would be Secretary of State Mike Pompeo, who has no seat in Congress to give up and would presumably take the job.
Which gives us this possibility: Trump dies after EC but before Jan. 20 and Pence is very ill. Having actually read the Constitution, the Dems in the House immediately vote Pelosi out as Speaker and elect…AOC is too young…someone designed to honk off the Republicans big time as the new Speaker. Pence dies. The new Speaker becomes President and heads explode all over the country.
Nice note: I don’t think the Constitution says anything about the Speaker being a current member of Congress. So technically, they could elect Michelle Obama to the post.
Raul Grijalva
Perhaps this post isn’t intended to suggest otherwise, but, of course, the Constitution says nothing at all about the place of the Speaker in the presidential line of succession.
Sure it does. Just one step removed. Article II, Section 1, Clause 6 lays it out and the Presidential Succession Act of 1947 fills in the details. All nice and legal (and Constitutional!)
Well, that’s a curious formulation (“Actually having read the Constitution, I know that a lawful permanent resident can generally apply for naturalization after five years.”). But ok.
Also, perhaps not constitutional. See generally Akhil Amar and Vikram Amar, “Is the Presidential Succession Law Constitutional?” (1995) (arguing that elected legislators are not “officers” within the Succession Clause).
Absolutely:
Well…how else would it work?
Let’s say it is not constitutional…then what? That’s all we got.
If the Supreme Court deems that succession law unconstitutional then who decides who becomes the next president (assuming we are going past the vice-president)?
If you really want to go down the rabbit hole, consider this. There’s no requirement that the Speaker of the House of Representatives has to be an elected member of the House. The House could, in theory, elect me as Speaker, and I, being constitutionally qualified, would be able to assume the presidency.