Once a VP is appointed, there is no disability of the VP, and therefore her capacity of Acting President is over.
Ooo. I think you’re assuming facts not yet in evidence.
I’d want to see some back up on the fact that an acting president would be superseded by a newly sworn VP.
I realize the phrase ‘acting president’ is thrown around a lot, but I’d want some sort of determination on that before believing it’s true. It’s some that has, simply, never been put to the test.
I think there are a ton of unknowns. The various succession acts were never tested in court. I suspect if Pelosi found herself as president there would immediately be a court case Pompeo v Pelosi to test who had the rightful claim to the throne. The Court may say that Congress can’t change anything regarding succession by statute, it would have to be by amendment. We don’t know and will likely never really know.
I’m not sure why we’re concentrating on the 25th Amendment. Under the scenario in question, the simultaneous deaths of the President and Vice President, wouldn’t the 1947 Presidential Succession Act be the operative law?
The 25th Amendment assumes the presence of the Vice President performing duties as the Acting President. The Speaker of the House plays no part except as the recipient of information. No mention of succession to Acting or “Real” President is made. The scenario of appointing a VP who would leapfrog over the Speaker as Acting President is impossible. This is true regardless of whether the PSA would hold up in court.
Re: scenario of Acting POTUS Pelosi nominating a Veep - The proposed VP must be confirmed by both houses of Congress. Anyone acceptable to the GOP Senate will be rejected by the Dem Reps and vice-versa, so Pelosi would retain the office till succeeded by newly-elected POTUS Biden. Congress elects leadership when a new session begins on 6 January IIRC so I don’t know if an Acting President can also be Speaker of the House. No precedent!
There used to be a question, dating back to 1841 when William Harrison died in office, as to whether the Vice President became the President or just acted as President. The precedent was the Vice President became the President but this was never explicitly stated.
Until 1967, when the 25th Amendment finally made it official and said “the Vice President shall become President”.
Which just brings up a new question. Okay, the Vice President becomes President. But does that same principle apply to anyone else in the line of succession?
Some would argue that the 25th Amendment establishes the general principle that becoming President by succession is the same as becoming President by election and that this principle applies to everyone.
Some (including UltraVires apparently) argue that “exceptio probat regulam in casibus non exceptis” applies here; that because the Constitution explicitly stated the Vice President becomes President and didn’t explicitly state that anyone else does, the permanence of the office only applies to the Vice President.
That would be a violation of the Ineligibility Clause, which says a member of Congress cannot hold any other federal office.
Subsection 2 states that once the disability of the VP ends, the Speaker’s presidency ends.
ETA: Better stated: The Speaker’s acting as president ends. The act pretty clearly states that these downrange individuals are not president, they merely “act” as president.
Any person who acts as president must resign his or her current position, so no dual acting president and Speaker.
Err… Article 2, Section 6:
6: 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,9 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.
I’m responding to the OP. The question is somewhat ambiguous but I am assuming that the President and Vice President both die before the 25th Amendment can be brought into play. That would make the Speaker the President. Not the Acting President, the President until the end of the term.
Whether the 25th Amendment comes into play in such a situation is unknown. As people must keep saying, this scenario is unprecedented and untested. My reading of the plain words say that it wouldn’t. Which means that I can’t see any way in which the PSA can simply be ignored in the discussion.
I see your point. There are holes in the laws and amendments that the drafters never addressed or even thought about. So we have the first provision:
Congress did provide by law “declaring what Officer shall then Act as President” in a series of laws, the one still applicable with only minor changes is the 1947 Presidential Succession Act, which I will return to below.
However, in the mid 1960s after the Kennedy assassination, it seems as if Congress saw some deficiencies in the original Constitution and wanted to change it in a few ways in the 25th Amendment:
- It wanted to provide that a VP could be nominated when the office was vacant.
- It cemented into Constitutional law the Tyler precedent that a Vice President was not merely an Acting President, he was the full president, in cases of removal, death or resignation, but not inability.
- It provided a distinct process for determining if a president was under an inability by the procedure described in the later paragraphs. In those cases a VP could act as president only temporarily.
However, it did not reconcile this new amendment with the 1947 Succession Act passed prior to it which was not written with the 25th Amendment in mind causing some inconsistencies and questions.
So let’s play again with our hypothetical. Trump and Pence each eat a bad scallop at a dinner at the White House and both die without having the time to say anything. According to the 1947 Presidential Succession Act, Nancy Pelosi, after resigning her Speakership and her seat in Congress “acts” as president.
I think it a pretty clear distinction that we don’t apply the Tyler Precedent here. The “same shall devolve” language, quoted above for the VP was ambiguous and was debated by the early politicians. What did “same” refer to, the office or the powers? Tyler and the 25th Amendment solved that WRT the VP, however, the language is clear in the original Constitution and the 1947 Act that all downline officers only “act” as president.
Okay, so where does that leave us? Must Pelosi nominate a VP? The 25th Amendment states:
Well, it is clear there is a vacancy in the office of the Vice President. Although Pelosi only “acts” as president, it would seem that she has all of the duties and responsibilities, no? So, by a plain text reading (and I find it interesting and look for counter arguments), she “shall” then nominate a VP.
Now, let’s ignore the practical politics and say she nominates Merrick Garland as VP. He has the support of the House and there is arm twisting to get 4 votes in the Senate. Don’t fight the hypo. Now Garland holds the official title of Vice President of the United States. He then looks to Sec 1 of the 25th Amendment:
Garland ponders what to do. Pelosi is not president; she merely acts as president. The last POTUS was Donald Trump who has died. Therefore, Merrick Garland is now President of the United States. Pelosi is no longer Acting President per the 1947 Succession Act, and she is no longer Speaker or even a member of Congress.
Now, Garland, as President, must appoint a VP.
Any legal counterarguments as to why this is unsound?
Does that law say she must resign her seat in Congress, or can she just put it in abbeyance to avoid the Constitutional restriction on holding positions in both the legislative and executive branches? (Article I, Section 6, para 2)
The main loophole I can see is that there’s no time limit on how soon the nomination needs to be made. A similar loophole was exploited to deny Garland his seat on the Supreme Court. Of course, if she doesn’t want to exploit that loophole, she could just continue to nominate people that she knows will not be approved by both Houses.
Well, the plain reading of the line “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” suggests to me that it does not apply here. The President has not been removed from office. Nancy Pelosi is the President and is still in office to the end of the term. If she isn’t President then how did she get the authority to name a Vice President?
The argument that she is the Acting President and therefore there is no President makes a mockery of the intent of both the PSA or the Amendment. Legislative intent is usually an important part of court reasoning (except for all the times they feel like ignoring it). You (UltraVires) are trying to make her President when convenient to your argument and Not President when that’s convenient. I don’t think that’s going to fly.
That sounds pretty compelling to me.
HOw does it make a mockery of the Presidentical Succession Act? That Act doesn’t say that the Speaker becomes President; it says that the Speaker “acts as President.” She’s not the President, but she can exercise all the powers of the President, which includes the power to appoint a Veep under the 25th Amendment.
As soon as a Veep is appointed and confirmed by Congress, then the reason for the former Speaker to act as President is removed: there is a Vice-President who has qualified as such, so the former Speaker’s authority under the statute is gone. The new Vice-President becomes President under the 25th. The former President, Trump, has died, so the new Veep becomes Pres under the 1st section of the 25th Amendment.
The statute requires that the Speaker shall, “… upon his resignation as Speaker and as Representative in Congress, act as President.”
And that is a huge loophole. Let’s take away the personalities here. Why would any Acting President ever nominate a VP that would take away the job of Acting President? The Acting President holds the most powerful position in the world and can only lose it, and will lose it, by nominating a VP successor.
Unlike Garland, which was a political battle between the Senate and the President, an Acting President would never have an incentive to nominate a VP, even if Congress was heavily controlled by his or her own party. This is a personal desire.
It seems like a Catch-22. Only a President can nominate somebody as Vice President. And a Vice President becomes President only when the office of President is empty.
So how can the office of President be empty if there was somebody in it to nominate the Vice President?
The 25th amendment says the president shall appoint… It doesn’t say a word about the acting presiddent. So she would either be the actual president and installed in that office and able to appoint a VP or she is only acting president and therefore lacks that power. Morton’s fork.