Could an acting president appoint a vice president?

[Sir Mohamed]

This is an interesting hypothetical question: If somehow the Speaker of the House becomes permanent acting president for the rest of the ongoing term, is he or she then in title to appoint a vice president? It causes a confusing situation, because the speaker can’t actually become president. Only a VP fully becomes the occupant of the office; all other officers just assume the powers and duties of the presidency as acting president. But when an acting president nominates a new VP under the 25th amendment, wouldn’t the newly appointed VP, after confirmed by congress, immediately become the president? Because formally there is no president, only an acting officer fulfilling powers and duties. At the same time, the constitution also provides that the vice president becomes president when the latter office is vacant. And in this case, the office is vacant since the acting president does not hold the position. Any ideas/opinions?

To me, there are three options:

- First, it’s really the case that the speaker as acting president can (or should) appoint a new VP, who immediately becomes president upon being confirmed. However, the Speaker would not then return to his old office, since he has to resign it in accordance with the 25th. However, it also raises the question whether the Speaker – as acting president – could appoint himself for the vice presidency in order to become a real president.

- Second, it’s not possible. However, this would mean that there are de-facto limits on the powers of an acting president. But the constitution does not state that in any specific form. An acting president has the same powers than a president, like signing bills into law and make appointments to the cabinet, agencies and courts. A single exception for this case seems strange, since there is no such provision in any law.

- Third, it is entirely unclear and would have to be answered by the Supreme Court before anything happens.

I think two scenarios can be ruled out: The acting president appoints a VP, who remains VP as long as the Speaker is acting as president. It sounds absurd that you have an acting president and a full vice president. And, second, there is no such thing like an acting VP.

[MASHED POTATOES. VOTE!]

I remember this being a case in The West Wing, when during a VP vacancy the Speaker was called to serve as Acting President. But no definitive answer was provided, I believe. Nonetheless, they had to draft a prospective list.

[True Federalist (진정한 연방 주의자)]

Based on 3 USC 19, here is my interpretation.

1. If the Speaker becomes President because both the Presidency and Vice Presidency are vacant, then the Speaker remains President until the end of the term and the Vice President nominated by em would be Vice President until the end of the term.

2. If the Speaker becomes President because of disability or of failure to qualify of both the President(-elect) and Vice President(-elect) then he cannot nominate a Vice President.

3. Similarly if the Presidency is vacant and no Vice President-elect has qualified, then he cannot nominate a Vice President.

4. If the Vice Presidency is vacant and either the President is disabled or no President-elect has qualified then the Speaker can nominate a Vice President who would then take over as Acting President.

[brucejoel99]

Yes, judging by the text of the Presidential Succession Act & the 25th Amendment, it appears that an Acting President of the United States (assuming office due to the death, resignation, or removal of the President & Vice President of the United States) absolutely does have the constitutional & legal ability to nominate a Vice President of the United States, subject to the approval of Congress.

Per the Presidential Succession Act, in the event of a simultaneous double vacancy in the offices of President of the United States & Vice President of the United States, the powers & duties of the Presidency fall to the Speaker of the House (if he qualifies under the Constitution & resigns his office to serve) as Acting President of the United States for the remainder of the then-current presidential term. Since the Presidential Succession Act gives all of the powers of the presidency to the Acting President, that would, of course, include the power to appoint a Vice President, who would, providing Congress consents to the nomination, supercede the Acting President & immediately be sworn into office as a full-fleged President of the United States, as ONLY the Vice President can actually succeed to the Presidency directly (any other individual can only become Acting President, & could directly assume the office only by appointing themselves as Vice President, & being confirmed of course).

[True Federalist (진정한 연방 주의자)]

Bruce, Article II clearly gives Congress authority to decide what happens when there is a double vacancy. The 25th Amendment did not revoke that, tho it did clear up whether the Tyler Precedent was valid. This the fact that the Presidential Succession Act, written before the 25th, uses the term Acting President should not be taken to necessarily mean that the Speaker cannot become President for the rest of the term. The PSA explicitly says that a Speaker who becomes Acting President because of a double vacancy, remains in his new job for the remainder of the Presidential term. The interesting cases are what if there's one vacancy and one disability, which I dealt with in my prior post as well.

[brucejoel99]

Bruce, Article II clearly gives Congress authority to decide what happens when there is a double vacancy. The 25th Amendment did not revoke that, tho it did clear up whether the Tyler Precedent was valid. This the fact that the Presidential Succession Act, written before the 25th, uses the term Acting President should not be taken to necessarily mean that the Speaker cannot become President for the rest of the term. The PSA explicitly says that a Speaker who becomes Acting President because of a double vacancy, remains in his new job for the remainder of the Presidential term. The interesting cases are what if there's one vacancy and one disability, which I dealt with in my prior post as well.

Idk where you got the idea that that's what I was saying, & I'm sorry if you did, but it's not.

Perhaps I'm reading these exchanges too quickly or missing the point entirely. But I don't see it as being a very confusing question. The Constitution & the 1947 Act are clear that only 2 types of people can ever become a "President of the United States:" a duly elected President-elect after he takes the oath of office & a Vice President of the United States, upon the death, resignation, or removal of the President. The only person who can succeed to the Presidency is a Vice President. Every other officer (Speaker, President pro tempore, Secretary of State, etc.) only acts as President. In the event of a simultaneous double vacancy in the offices of President of the United States & Vice President of the United States, the powers & duties of the Presidency fall to the Speaker of the House (if he qualifies under the Constitution & resigns his office to serve) as Acting President of the United States for the remainder of the then-current presidential term (unless & until the Acting President avails himself of the constitutional option to nominate a Vice President who, upon confirmation, shall succeed to the Presidency*).

I'll agree that the lack of implementation of the Act means these things haven't been tested, but the answer is clear based on a plain-text reading of the law. Whether the press/public would consider a long-term Acting President to really just be the President is a question none of us can answer. But we're allowed to state w/ authority that the law wouldn't permit a Speaker, taking office after a double vacancy, to be anything other than Acting President.



* When one thinks of it, if the Presidency is vacant (which would be the case here), the confirmation of a Vice President would cause automatic succession to the Presidency (for example, in 1973, when Carl Albert was next in line to assume the presidential powers & duties, had that office become vacant, between Agnew's resignation as Vice President & Ford's confirmation by both houses of Congress, he said he would only serve until the swearing in of a new Republican Vice President caused that new VP to immediately become President). All these confusions would be avoided if the Speaker could succeed to the Presidency itself. Of course, there's always the chance a House Speaker (or whoever is next in line) could claim the Presidency, in a Tyleristic move. A big part of it falls under implementation (which, again, hasn't occurred yet).

[True Federalist (진정한 연방 주의자)]

Bruce, we clearly do not agree on what happens in the event of a double vacancy.  The 1947 law was written before the 25th put the Tyler Precedent into the explicit language of the Constitution, so the fact that it uses the words "Acting President" carries far less weight than the fact that the law provides for a Speaker (or a President pro tem, but not a cabinet officer) to act as President until the end of the term in the case of a double vacancy.  Not only that but the 25th doesn't contain any language concerning what happens if there is a double vacancy.

Note that the show Designated Survivor gets it wrong on many levels. Kirkman's nominee for Veep couldn't get a vote until both houses of Congress have quorums and if they did they'd have chosen a Speaker and a PPT, either of whom would have replaced Kirkman, unless they both were unqualified to be President, before he could place his nomination before Congress. Even if they were both unqualified, MacLeish as Veep would have immediately become President, making shooting Kirkman utterly unnecessary.

[brucejoel99]

Bruce, we clearly do not agree on what happens in the event of a double vacancy.  The 1947 law was written before the 25th put the Tyler Precedent into the explicit language of the Constitution, so the fact that it uses the words "Acting President" carries far less weight than the fact that the law provides for a Speaker (or a President pro tem, but not a cabinet officer) to act as President until the end of the term in the case of a double vacancy.  Not only that but the 25th doesn't contain any language concerning what happens if there is a double vacancy.

Note that the show Designated Survivor gets it wrong on many levels. Kirkman's nominee for Veep couldn't get a vote until both houses of Congress have quorums and if they did they'd have chosen a Speaker and a PPT, either of whom would have replaced Kirkman, unless they both were unqualified to be President, before he could place his nomination before Congress. Even if they were both unqualified, MacLeish as Veep would have immediately become President, making shooting Kirkman utterly unnecessary.

You're misunderstanding me: I'm not invoking either the Tyler Precedent or any cultural misinterpretations of constitutional law (lol which, yes, is a crime that Designated Survivor does commit; Kirkman, the HUD Secretary played by Keifer Sutherland, would become Acting President & *NOT* President when the Capitol's destroyed by a terrorist attack during the State of the Union address).

Basically, what it comes down to when determining that an Acting President under 3 U.S. Code § 19 (the Presidential Succession Act of 1947) can indeed appoint a Vice President under the 25th Amendment is the fact that the full executive Power of the United States is vested in an Acting President, & that entails the ability to exercise the powers of the Presidency w/ full force.

Now, if the scenario presented was one in which, say, under the 20th Amendment, the House had yet to choose a President & the VP elected by the Senate was "act(ing) as President until a President shall have qualified," then said VP, as Acting President, still remains VP & couldn't appoint a new VP b/c the Vice Presidency wouldn't, in fact, be vacant. This Acting President wouldn't be Ford after Nixon resigned, but Bush 41 when Reagan had polyps removed. And no one believed Bush could've appointed a new VP.

But, crucially, this isn't that scenario. The scenario presented is a double vacancy in both the offices of President & Vice President. Now, the 25th Amendment gives the President the power to appoint a new VP in the case of a vacancy. It also states that, if there's no President, the VP becomes President. But crucially (remember), the scenario presented is a situation in which the Presidency & Vice Presidency are simultaneously vacant. The Speaker of the House (or, whoever) has become Acting President. Now, as there is actually a vacancy in the office of Vice President, the Acting President, therefore, has the power to appoint a new VP b/c, as I stated earlier, from the text of the Presidential Succession Act of 1947 & the 25th Amendment, the full executive Power of the United States is vested in an Acting President, & that entails the ability to exercise the powers of the Presidency w/ full force. So, therefore, the Acting President in this scenario *does indeed have* the constitutional & legal ability to appoint a VP who, once confirmed, would supersede the Acting President & be sworn into office as a full-fledged President.


**As always, of course, the standard disclaimer that "this-has-never-actually-happened-before-so-who-really-knows?" applies, but, as of right now, the statutory justification for an Acting President to appoint a VP who'd then claim the Presidency is there.**

[True Federalist (진정한 연방 주의자)]

**As always, of course, the standard disclaimer that "this-has-never-actually-happened-before-so-who-really-knows?" applies, but, as of right now, the statutory justification for an Acting President to appoint a VP who'd then claim the Presidency is there.**

No it's not. The words of the Presidential Succession Act must be interpreted in light of the Constitution as it existed when it was passed. The precise difference in meaning between "President" and "Acting President" that the 25th established didn't exist then. The Constitution gives Congress the authority to create a "President" in the 25th Amendment sense when there is a double vacancy. The 25th didn't change that. The process laid out in the Presidential Succession Act clearly envisions that a Speaker or President pro tem becomes "President" and not "Acting President" when there is a double vacancy, notwithstanding that it uses the term "Acting President" because it is using that term in the vague pre-25th Amendment sense of that term.

[brucejoel99]

The words of the Presidential Succession Act must be interpreted in light of the Constitution as it existed when it was passed. The precise difference in meaning between "President" and "Acting President" that the 25th established didn't exist then. The Constitution gives Congress the authority to create a "President" in the 25th Amendment sense when there is a double vacancy. The 25th didn't change that.

Ummm... no, that's not how laws work. Constitutional amendments overrule any contrary law. The interpretation of the Constitution as it existed when the Presidential Succession Act passed is, for all intents & purposes, irrelevant to any scenario that takes place post-25th Amendment, & that's b/c the 25th Amendment states very clearly that only a Vice President can become President.

The process laid out in the Presidential Succession Act clearly envisions that a Speaker or President pro tem becomes "President" and not "Acting President" when there is a double vacancy, notwithstanding that it uses the term "Acting President" because it is using that term in the vague pre-25th Amendment sense of that term.

Per the grounds in this argumentation, no: in the event of a double vacancy, the Speaker of the House becomes Acting President for the remainder of the term of the deceased President, but he won't become President; rather, he'll merely act as President w/ full Constitutional powers for potentially a period of years.

Is it odd that under such a scenario, this man won't actually become President but just act as such for a prolonged period? Yes.

After the ratification of the 25th Amendment, couldn't/shouldn't provisions have been made for such an officer actually succeeding instead of just acting, in cases where there's no "full-fleged" President (thereby being equivalent to the position of the VP, who, again, actually becomes President if only the President dies)? Yes.

Could such an Acting President as described above nominate a Vice President, who'd then take over the Presidency by default the moment he was sworn in as Vice President? Per these argumentative grounds, yes.

• The actual real-life evidence: In 1973, Carl Albert had the potential to become Acting President under the Presidential Succession Act. However, he concluded that, as a Democrat, he had no right to inherit a Presidency that'd been won by a Republican ticket in 1972, & stated that if he'd become Acting President by succession that it'd be in the national interest for the House & Senate to confirm a Republican Vice President who'd immediately become President.

Could the Acting President nominate himself as Vice President & thereby become a "full-fledged" President? Per these argumentative grounds, yes.

Would the Acting President perhaps be obliged to nominate a Vice-President (as per Section 2 that establishes a procedure for filling a Vice-Presidential vacancy)? Who knows?

**As always, of course, the standard disclaimer that "this-has-never-actually-happened-before-so-who-really-knows?" applies, but, as of right now, the statutory justification for an Acting President to appoint a VP who'd then claim the Presidency is there.**

No it's not.

Actually, yes: I'm still right on both of those points, especially the fact that only when the Presidential Succession Act is implemented (which hasn't happened yet) will we know how it'll truly work out.

[True Federalist (진정한 연방 주의자)]

The words of the Presidential Succession Act must be interpreted in light of the Constitution as it existed when it was passed. The precise difference in meaning between "President" and "Acting President" that the 25th established didn't exist then. The Constitution gives Congress the authority to create a "President" in the 25th Amendment sense when there is a double vacancy. The 25th didn't change that.

Ummm... no, that's not how laws work. Constitutional amendments overrule any contrary law. The interpretation of the Constitution as it existed when the Presidential Succession Act passed is, for all intents & purposes, irrelevant to any scenario that takes place post-25th Amendment, & that's b/c the 25th Amendment states very clearly that only a Vice President can become President.

Strange, I just re-read the 25th and I didn't see that at all being clearly spelled out. It does clearly spell out that the Tyler Precedent is correct, that a Vice President who succeeds to the office because of a vacancy in the Presidency becomes President rather than merely Acting President. But it is silent as to whether any official who succeeds to the office because of a double vacancy becomes President in full or only Acting President. You can't argue from a failure to mention, otherwise you'd be arguing that the Air Force is unconstitutional.

As for Carl Albert, I agree that it was in the national interest that a change in the political party controlling the Presidency be avoided, but doesn't mean it was constitutionally mandated that it be avoided. Don't mix up good sense or morality with constitutionality. Sadly, if such a situation had happened in 2015, the way politics is these days, our 45th President would've been Paul Ryan. We're far more partisan as a country than we were four decades ago.

[brucejoel99]

The words of the Presidential Succession Act must be interpreted in light of the Constitution as it existed when it was passed. The precise difference in meaning between "President" and "Acting President" that the 25th established didn't exist then. The Constitution gives Congress the authority to create a "President" in the 25th Amendment sense when there is a double vacancy. The 25th didn't change that.

Ummm... no, that's not how laws work. Constitutional amendments overrule any contrary law. The interpretation of the Constitution as it existed when the Presidential Succession Act passed is, for all intents & purposes, irrelevant to any scenario that takes place post-25th Amendment, & that's b/c the 25th Amendment states very clearly that only a Vice President can become President.

Strange, I just re-read the 25th and I didn't see that at all being clearly spelled out. It does clearly spell out that the Tyler Precedent is correct, that a Vice President who succeeds to the office because of a vacancy in the Presidency becomes President rather than merely Acting President. But it is silent as to whether any official who succeeds to the office because of a double vacancy becomes President in full or only Acting President. You can't argue from a failure to mention, otherwise you'd be arguing that the Air Force is unconstitutional.

Welp, at the end of the day, I suppose it just comes down to interpretation, really. I interpret the 25th Amendment's failure to specify whether any of the officers in the Presidential Succession Act would succeed to the office of the President as would a Vice President as meaning that, for the time being (that is, until another constitutional amendment or even an updated Presidential Succession Act says otherwise), the 25th Amendment stipulates that only a Vice President can become President. You, perhaps rightly, interpret it otherwise. And that's precisely why only when the Act's actually implemented (which hasn't happened yet) will we know how it'll work out.

As for Carl Albert, I agree that it was in the national interest that a change in the political party controlling the Presidency be avoided, but doesn't mean it was constitutionally mandated that it be avoided. Don't mix up good sense or morality with constitutionality. Sadly, if such a situation had happened in 2015, the way politics is these days, our 45th President would've been Paul Ryan. We're far more partisan as a country than we were four decades ago.

I think you slightly misunderstand me lol: Ik it wasn't constitutionally mandated that Albert give up the Presidency to the GOP, that's not what I'm arguing here (in fact, I even touched upon it when I asked/answered "Would the Acting President perhaps be obliged to nominate a Vice-President (as per Section 2 that establishes a procedure for filling a Vice-Presidential vacancy)? Who knows?").

But the position I'm showing here is that Albert understood that, constitutionally, all it took to have a "full-fledged" President again was to appoint a Vice President (Republican or otherwise) who'd, upon confirmation, immediately supersede Albert & become the "full-fledged" President.

My apologies if I made it sound weird/like I was saying something different earlier & that resulted in any misunderstanding; that wasn't my intent.

& yes, sadly but surely, though, you're all too correct on your final point: hell, if there'd been an Obama Watergate that brought down both Obama & Biden, I'm sure Ryan & the GOP would claim that it's actually in the nat'l interest to keep the Democrats out of the White House, regardless of who won in 2012, b/c reasons. Don't get me wrong, though: my side (even though it's Carl Albert's party) would prob. be sh**tty about it today, too. Even 10 years ago, if Bush/Cheney had somehow managed to both be impeached over Iraq, Nancy Pelosi wouldn't have stepped aside for another Republican, that's for sure.

• <sidenote> Hell, as TD can tell you, we've now hit peak polarization. The forces that've fueled the widening gap between the 2 political parties are now fueling fights w/in the 2 political parties, fights that'll lead to new coalitions in American politics, eventually realigning the 2 parties. A new era of American politics is about to emerge. </sidenote>

[True Federalist (진정한 연방 주의자)]

The difference is that you think Albert nominating a Republican Vice President who is then confirmed would automatically make that Veep become President, while I think Albert would have then had to resign to restore the Presidency to the GOP. But as you say, the test would be what happened when it actually happens.

[brucejoel99]

The difference is that you think Albert nominating a Republican Vice President who is then confirmed would automatically make that Veep become President, while I think Albert would have then had to resign to restore the Presidency to the GOP. But as you say, the test would be what happened when it actually happens.

Lol yup

[JoshPA]

I remember this being a case in The West Wing, when during a VP vacancy the Speaker was called to serve as Acting President. But no definitive answer was provided, I believe. Nonetheless, they had to draft a prospective list.

*slap roberspierre* The Orion is more credible then the west wing do i got to remind you of the abortion of a electoral map and the fact that 2002 and 1998 had presidential elections?

[Gary J]

Perhaps Congress should re-write the Presidential succession law, to take account of the 25th Amendment and sort out some of the uncertainties before they had to be resolved during the middle of a major political and constitutional crisis.

[Slander and/or Libel]

There are some concerns about the constitutionality of the 1947 Presidential Succession Act as well, and whether legislative officers constitutionally qualify as constitutional Officers capable of acting as President.

To wit:

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If the "officers" mentioned in Article II, Section 1, Clause 6 are the same as the "officers of the United States" mentioned in Section 2, Clause 2 and Section 3, then it's pretty apparent that legislative officers don't belong on that list, and that having the Speaker and President Pro Tempore in the line of succession is unconstitutional. This is all a completely unresolved question, though, obviously.

Also, and I know this is somewhat off topic, the 1947 Presidential Succession Act is a total mess. The Speaker and President Pro Tempore have to resign to act as president. It's unclear whether they have the ability to willingly pass on being Acting President if called upon, or how long they'd have to make their choice. If they don't have the ability to pass, then for instance, Obama and Biden could have scheduled colonoscopies for the same day and forced Paul Ryan and Orrin Hatch from office. Of course, if they did so, Kerry would have been forced to act as president, and in so doing resign from his post as Secretary of State. How does it make sense for a cabinet secretary, who is in line to act as president by virtue of holding a cabinet post, to have to resign that post to act as president? When the Vice President acts as president he's not required to resign the Vice Presidency. Why should a Cabinet official? Note: previous versions of the Presidential Succession Act did not do this. Previous versions also specified a means for a special election in the case of a double vacancy.

[Sir Mohamed]

There are some concerns about the constitutionality of the 1947 Presidential Succession Act as well, and whether legislative officers constitutionally qualify as constitutional Officers capable of acting as President.

To wit:

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If the "officers" mentioned in Article II, Section 1, Clause 6 are the same as the "officers of the United States" mentioned in Section 2, Clause 2 and Section 3, then it's pretty apparent that legislative officers don't belong on that list, and that having the Speaker and President Pro Tempore in the line of succession is unconstitutional. This is all a completely unresolved question, though, obviously.

Also, and I know this is somewhat off topic, the 1947 Presidential Succession Act is a total mess. The Speaker and President Pro Tempore have to resign to act as president. It's unclear whether they have the ability to willingly pass on being Acting President if called upon, or how long they'd have to make their choice. If they don't have the ability to pass, then for instance, Obama and Biden could have scheduled colonoscopies for the same day and forced Paul Ryan and Orrin Hatch from office. Of course, if they did so, Kerry would have been forced to act as president, and in so doing resign from his post as Secretary of State. How does it make sense for a cabinet secretary, who is in line to act as president by virtue of holding a cabinet post, to have to resign that post to act as president? When the Vice President acts as president he's not required to resign the Vice Presidency. Why should a Cabinet official? Note: previous versions of the Presidential Succession Act did not do this. Previous versions also specified a means for a special election in the case of a double vacancy.

Probably because the Vice President, when acting as president, is only temporarily in charge. He only acts as president when the latter can't execute his powers, but is de facto still the president. For example during a surgery. If the vice president succeeds to the president, is also required to "leave" the vice presidential office (I don't know whether a vice president could refuse to take over). The difference is that he assumes the role for the rest of term. So if a Speaker had to be acting president, he'd likely stay in power until the next regular election.

[Slander and/or Libel]

Probably because the Vice President, when acting as president, is only temporarily in charge. He only acts as president when the latter can't execute his powers, but is de facto still the president. For example during a surgery. If the vice president succeeds to the president, is also required to "leave" the vice presidential office (I don't know whether a vice president could refuse to take over). The difference is that he assumes the role for the rest of term. So if a Speaker had to be acting president, he'd likely stay in power until the next regular election.

But the Succession Act also provides that a cabinet official can be bumped by a later qualifying Speaker or President Pro Tempore. It's clear why the Speaker or PPT would have to resign, and that's because they couldn't simultaneously be members of the legislative and executive branches, constitutionally. That's clear. But it's unclear why a cabinet official who, by virtue of being a cabinet official, assumes the acting presidency, should have to resign the cabinet position to do so, especially if there is a mechanism for chicanery on the part of the legislature explicitly written into the law.

[MASHED POTATOES. VOTE!]

A little off-topic, but in the 60s there was a proposition that if the Vice Presidency is vacant, the next person in the line of succession should receive the official title of "Acting Vice President".

Similarly, James Eastland was refereed by some as "Acting Vice President" in the 70s, due to his role as PPT when there was no VP. But he was not first in the line of succession.

[President Johnson]

As far as I know, House Speaker Carl Albert announced in 1973 that if Nixon is impeached during the vice presidential vacancy between Spiro Agnew and Gerald Ford, he would appoint a Republican vice president and then resign. This could be an indication, that the acting president might appoint a vice president. But I can't tell whether that vice president would then automatically assume the presidency or not.

[True Federalist (진정한 연방 주의자)]

If it were automatic, why would Albert have needed to resign?