order of succession loophole?

[J. J.]

Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?

Yes, it does.

She doesn't have a term of office as such.

They may have someone stay away from the ceremony, a "designated survivor."

[J. J.]

Would Condi Rice still legally be SoS? Doesn't her term expire when Bush goes out?

Yes, it does.

She doesn't have a term of office as such.

They may have someone stay away from the ceremony, a "designated survivor."

OK, but who is even in the line of succession, who could serve as a designated survivor, in the moments after the new president and VP are sworn in?  If the president has *just* been sworn in minutes ago, there hasn't been time to swear in the new Cabinet yet.  So is the entire Cabinet vacant, or are the old Cabinet members from the outgoing administration still in office until their replacements are sworn in?

The Speaker and President Pro Tem.  In theory, a single surviving Representative could elect a Speaker.

[J. J.]

And if Rice still counts as the SoS, and can take over as president, could she legally remain president through the entirety of Obama's term?  That's what I'm asking.

If Rice is still the SoS, yes.  I'm not sure if she would be.  She doesn't have a term of office, per se.

[J. J.]

Just to throw a wrench in the clockwork, what if all predecessor's cabinet members were either born in foreign countries, or had not yet reached their 35 birthdays or hadn't lived in the country for at least 14 years, or something like that, so that none was constitutionally eligible? 

That's a fun question too.  At what point does the line of succession go down to you?  Or me?

According to the the government's Common Documents site, "If a statutory successor is serving as acting President, Congress may, but is not required to, call a new presidential election."

My bet is that Condi would last about a millisecond as president with this congress.

Unfortunately, succession ends at the cabinet.

Now, the kicker is, both the House and Senate can elect someone to serve as presiding officer, even if not a member of the body; indeed several nonmembers received votes for House Speakers in 1997.  My guess would be that they would quickly elect someone established, Al Gore, for example, who would then become President.

[J. J.]

That's what makes the scenario where the new president hasn't picked a new SoS yet interesting.  If Obama and Biden take the oath of office on Jan. 20th, and Obama hasn't picked a new SoS yet, when Obama, Biden, Pelosi, and Byrd are all killed, then, if we're saying that Rice is still technically SoS at that point, she's sworn in as president, and serves out the entirety of Obama's term.  Of course, there would be an enormous backlash against the GOP taking back the presidency for another four years through an order of succession loophole, and Rice would probably be pressured into resigning, but the question was about whether she could *legally* stay on as president for all four years if she wanted to, not whether she would actually go through with it.

The question is, is Rice still SoS?  I think that would be the answer.

[J. J.]

I believe that the government has a list that extends past 17, or however many spots there are, for several hundred or so.  It may just be seniority in the Senate, then House, although these people have to be elligible to be president.

I've never seen a list that drops below the cabinet, but there is a practical solution.

So long as one member of the house is left, he can choose a Speaker, who then becomes President.  I think the same thing occurs in the Senate.  At that point, there would be the 17 on the list, plus 434 who would have to die before a vacancy in the office of Speaker could not be filled, plus (probably) 99 in the Senate before a President Pro Tem could be elected.  The only problem I could see is if the House was adjourned and couldn't meet.

[J. J.]

So, assuming, that Representative Minnick of Idaho (just for example) is places as a designated survivor and he's only one left, he can elect himself as a Speaker and assume the Presidency, correct?

Possibly.  The controlling law is 3 USC Sec. 19.

If everyone on the succession list is wiped out, Minnick becomes President once he becomes Speaker.

It would not necessary be Minnick, or any other House Member.  There is no statutory or constitutional requirement that the Speaker be a member (or even a citizen).  Provided the person elected Speaker is a natural born citizen, over 35, and been a resident for 14 years, whomever the survivor Representative elects becomes speaker.

Consider these possibilities; Representative Jones is the survivor Representative, in all cases.

1.  Jones is old or has a serious illness; the strain of being president would kill him in three months.  Jones elects a popular capable Governor or Senator, who is eligible to be President, as Speaker.

2.  Everyone else is killed in an attack.  The National Security Adviser, not in line of succession, but eligible to be President, was out of town and survives.  Jones elects him because he can better do the job in a national emergency.

3.  The vacancies occur after a clear electoral victory for a presidential candidate (not in succession) but before the start of the term.  Jones elects the president elect (not in the line of succession) as Speaker.

4.  Jones simply knows that, while he might be a good Congressman, he'd be a lousy president.  Maybe he's gay and in the closet, and doesn't want it to come out.  Maybe he's having an affair with an Israeli woman and would see a national security issue if he were not just some minor Congressman from Butte, Montana.

5.  Maybe Jones is 32 years old, or was born in the UK and can be the Speaker, but not President.

Jones might be the kingmaker, but not the king.

[J. J.]

I expect that since Secretary Gates is currently scheduled to continue on as SoD in the Obama cabinet, he'll be the designated survivor and will not show up at the inauguration.  Gates doesn't need to be reconfirmed, so he'll provide the necessary continuity of government.

In addition to that, there have been numerous examples of a cabinet Secretary staying in office a few days into the term of a new President until his nominated successor is confirmed.  Most often it's been the Secretary of State, although the ast time that happened for Secretary of State was in 1913 when Taft's Secretary of State Philander Chase Knox remained in office until March 5, 1913 when Wilson's SoS William Jennings Bryan was confirmed.  Indeed the Taft/Wilson transition appears to be the last time any of the cabinet chose to hang around an extra day or two with the succeeding president being of the opposite party (Taft's Secretary of the Treasury also stayed an extra day.)  However several of Reagan's Secretaries remained a few days until GHWB's nominees took office.

*BUMP*

I think this points the way to a solution to the original question.  The OP is suggesting there must be some strict, highly technical solution to the situation discussed.  The above history, however, suggests that the system is actually very flexible and adaptable.  So, a highly technical and legalistic view may be the wrong one.

Not really.

Some new presidents want a clean sweep, or at least want to put cabinet officers in different positions.

Supposed that Rice resigned "upon the confirmation of my successor."  1/20/09 at 12:38 PM, Obama, Biden, Pelosi and Byrd die.  Rice is POTUS until 1/20/13, even though she was part of an administration that was not re-elected.