269-269 EC with 50-50 Senate

[SteveRogers]

Keep voting until someone wins.

Or come up with a compromise candidate.

They can't. The Senate can only choose from among the top two finishers in the electoral college vote.

And "a majority of the whole number shall be necessary to a choice," so the outgoing Vice President probably doesn't get to cast a tie-breaking vote. If the Senate truly remains deadlocked until the new President is sworn in on January 20, the new president could probably then fill the vacancy through the normal nominating process under the 25th amendment. That would of course still require a majority vote in both houses, but the President at that point could pick an alternate compromise candidate for VP if necessary.

[SteveRogers]

Yeah, the Veep doesn't get to vote.

Really? When CNN was talking about this possibility in the run up to 2012,  they said the veep could break the tie in this scenario.

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[SteveRogers]

What if the House vote were a 25-25 split, with no delegations willing to abstain or switch votes?  If still a stalemate by the 20th, is the presidency deemed vacant?

20th Amendment:

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So the Vice President-Elect would become acting president until the stalemate in the House could be broken. And if the House and Senate were both deadlocked, then the Speaker  would be acting president until either stalemate could be broken.

[SteveRogers]

What if the House vote were a 25-25 split, with no delegations willing to abstain or switch votes?  If still a stalemate by the 20th, is the presidency deemed vacant?

20th Amendment:

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So the Vice President-Elect would become acting president until the stalemate in the House could be broken. And if the House and Senate were both deadlocked, then the Speaker  would be acting president until either stalemate could be broken.

[SPOILERS]

This is exactly what seems about to happen in the end of the latest season of Veep. Though they've been playing fast and loose and saying the Vice President-Elect would become President, not Acting President.

[/SPOILERS]

Yeah, that bugged me. Plus they hinted that if Tom James became President under that scenario that he might appoint Selena as his Vice President, which I guess is probably technically allowable but would open up a really big can of worms if the House did break the stalemate later on after the term began.

[SteveRogers]

What if the House vote were a 25-25 split, with no delegations willing to abstain or switch votes?  If still a stalemate by the 20th, is the presidency deemed vacant?

20th Amendment:

You must be logged in to read this quote.

So the Vice President-Elect would become acting president until the stalemate in the House could be broken. And if the House and Senate were both deadlocked, then the Speaker  would be acting president until either stalemate could be broken.

[SPOILERS]

This is exactly what seems about to happen in the end of the latest season of Veep. Though they've been playing fast and loose and saying the Vice President-Elect would become President, not Acting President.

[/SPOILERS]

Yeah, that bugged me. Plus they hinted that if Tom James became President under that scenario that he might appoint Selena as his Vice President, which I guess is probably technically allowable but would open up a really big can of worms if the House did break the stalemate later on after the term began.

So would an Acting President have all of the power that a President has? I mean, presumably, right? It just feels weird to me that somebody in a transitional role like that could potentially nominate a Vice President.

Of course that's probably the way to get Selina back into the VP's office, right? Tom James becomes President, nominates Selina to be Vice President, and then the vote in the House breaks to O'Brien, so Selina winds up as VP to her opponent?

Except that Tom James would still be the Vice-President-Elect in that scenario. Wouldn't that keep him from being able to nominate someone to the Vice Presidency, as he's technically pre-occupying the office himself?

Well yes, the Acting President would have all the ordinary powers of the presidency, including nominating a Veep, BUT as you point out, if the Vice President is Acting as president, then the office of the Vice President isn't really vacant, so they probably wouldn't be able to nominate a new Veep. So I take back my earlier statement and don't think the scenario proposed on the show is possible. But of course the language in the constitution is vague enough that James could still try it. And now that you mention it, the scenario you propose above that ends with an O'Brien- Meyer administration might actually be the logical way for the show to go next season, even if in real life it would probably trigger a constitutional crisis.

(Note that this is different than a scenario where, say, the President is incapacitated, the Vice President is dead, and the Speaker is Acting President. In that scenario the Acting President can appoint a new Veep which the President could be stuck with

[SteveRogers]

That raises an interesting question. If the President is incapacitated and the VP dead, and the Speaker as acting president nominated and confirmed a Vice President, would the VP then become acting president?

Ooh that's a hard one to answer and one that I hadn't thought of when I posted that. Let's see...

The Presidential Succession Act says:

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So those scenarios deal with (1) the electoral deadlock scenario and (2) a scenario where the president and VP are just incapacitated temporarily. Otherwise, the act says the Speaker is supposed to keep on acting as president for the whole term.

There's no provision expressly indicating that a new VP would "bump" a speaker out of the office of the presidency which you would expect there would be if that's what congress intended because the act does expressly provide that a new Speaker or Senate Pres. Pro tempore does bump a cabinet member out of the acting president slot.

I'm not sure that the Constitutional provision empowering congress to establish a line of succession really answers this question.
Article II, Sec. 6:

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But I think the 25th Amendment potentially resolves the problem here. First, the 25th Amendment clarifies that,
 

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So if the president is dead and the speaker as acting president nominates a new vice president, then I think the most reasonable reading of the constitution is that the new vice president definitely immediately becomes president. But we want to know what happens when the president is incapacitated. Sec. 4 of the 25th Amendment provides that the VP and a majority of the cabinet can declare a presidential incapacity, at which point

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So even though the speaker would currently be discharging the powers of the president, the actual president would be incapacitated and the new VP should be able to use this procedure to displace the speaker as acting president. HOWEVER, in both scenarios (death and incapacity of president) the speaker could argue that the person currently acting as president is treated as the president for purposes of the 25th amendment because when the speaker acts as president, the real president isn't really the president at that moment.

So I guess the answer is "maybe"?

All of this reminds me that I need to go finally finish my "Succession Game" timeline.

[SteveRogers]

I think it would get pretty knotty with the acting president/president thing, but I think it seems clear that the Act intends that there remain some fundamental distinction between the Presideny and the person carrying out the duties of the President, but not the President.

Other question I just thought of: if the Speaker of the House becomes Acting President, is he still Speaker, carrying out the duties of both offices? What if the House votes him out as Speaker? Does he cease to be Acting President?

The Presidential Succession Act actually says that the Speaker has to resign from their position as Speaker and as a member of congress in order to become acting president.  Otherwise you'd obviously have a separation of powers problem.

The other thing I just thought of is that a Speaker/Acting President could short circuit the 25th amendment by just not appointing a VP, right?

Yeah, they could avoid the whole issue by just never nominating a VP.

[SteveRogers]

Oh, I'd missed that part. So...have we been missing a way to force out an unwanted speaker, by having the president and vice president declare themselves incapable of carrying out the duties of the office to force the speaker into resigning and becoming acting president for like 10 minutes at which point the president and vice president recover?

Well I think the Speaker could just refuse to resign and then the baton would pass to the Senate President pro tempore

[SteveRogers]

Well you're right that under the most literal reading of the statute, "shall" means that the speaker has to do it. But I can't see the courts upholding an act that requires a member of congress to resign absent the two-thirds vote the constitution requires in order to expel a member, and I'm fairly certain the courts would hold that congress couldn't have intended the act to compel a person to serve as president against their will.

And if the speaker refuses to resign, then I think that obviously counts as failure to qualify.

Obviously there's no case law interpreting the act, so this is all just my speculation on how the act could be most reasonably interpreted under such circumstances.