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Author Topic: Electing someone who won't give up their existing office  (Read 2391 times)
Mr. Morden
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« on: October 25, 2017, 02:18:12 pm »

Suppose hypothetically that no one had won an electoral college majority in November of last year, with a bunch of Republican faithless electors voting for Paul Ryan.  So the House chooses between Clinton, Trump, and Ryan, while the Senate picks the VP from between Kaine and Pence (presumably going with Pence).

Now let's suppose that the House Republicans actually elect Ryan as president, but Ryan says that he actually doesn't want it.  He won't resign his House seat in order to take office as president.  Since it's illegal for him to hold both offices at once, I guess Pence then becomes president?  Would he take over for the full four year term, or could Ryan, at any moment, change his mind, and resign his House seat in order to become president?  Or would the House's election of Ryan, who's still in Congress and not quitting, be counted as invalid, and thus they'd be free to revote until someone gets a majority?
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« Reply #1 on: October 25, 2017, 03:24:44 pm »

I thought that once the House vote was taken, Ryan would become president and automatically lose his seat. If he didn't want the presidency, then he could resign, but he would still no longer be a member of the House. IIRC, the constitution doesn't spell out a process where they can decline. They just become the holder of that office.
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« Reply #2 on: October 25, 2017, 05:53:23 pm »

I thought that once the House vote was taken, Ryan would become president and automatically lose his seat. If he didn't want the presidency, then he could resign, but he would still no longer be a member of the House.

Interestingly, he could still be a Speaker, even after losing his seat, if the House re-elects him to the post.
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Mr. Morden
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« Reply #3 on: October 27, 2017, 01:24:35 pm »

I thought that once the House vote was taken, Ryan would become president and automatically lose his seat. If he didn't want the presidency, then he could resign, but he would still no longer be a member of the House.

Really?  Because here's Wiki on the case law of the constitutional bar on holding two offices at once:

https://en.wikipedia.org/wiki/Ineligibility_Clause

Quote
Among the earliest questions to be addressed under the clause was whether a person serving as a United States Attorney could continue to serve in that capacity after being elected to a seat in Congress. In 1816, Samuel Herrick was elected to the 15th United States Congress while still serving as U.S. Attorney for the District of Ohio. He was not allowed to take his seat until the House of Representatives had determined whether his service as a U.S. Attorney created a conflict under the clause.

It sounds like because his eligibility was in dispute, he was not allowed to take his new seat in Congress until the eligibility question was resolved, which is different from saying that the election to Congress would automatically quit him out of his old job.  Presumably, it would work the same for POTUS as with Congress?
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« Reply #4 on: December 13, 2017, 02:38:12 pm »

I thought that once the House vote was taken, Ryan would become president and automatically lose his seat. If he didn't want the presidency, then he could resign, but he would still no longer be a member of the House. IIRC, the constitution doesn't spell out a process where they can decline. They just become the holder of that office.

I read the 1947 Presidential Succession Act as saying the Speaker would become president upon resignation of his office, implying that he could decline to resign and pass succession on to the next person. It does look to me, though, like once it gets down to the cabinet level, succession is automatic.
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« Reply #5 on: January 23, 2018, 03:56:11 pm »

I thought that once the House vote was taken, Ryan would become president and automatically lose his seat. If he didn't want the presidency, then he could resign, but he would still no longer be a member of the House. IIRC, the constitution doesn't spell out a process where they can decline. They just become the holder of that office.

I read the 1947 Presidential Succession Act as saying the Speaker would become president upon resignation of his office, implying that he could decline to resign and pass succession on to the next person. It does look to me, though, like once it gets down to the cabinet level, succession is automatic.

That law refers to succession after the President resigns or dies, so I don't think it applies to a case where Congress elects the house speaker to the presidency. Those who leave office at the end of their term don't formally resign, they lose power automatically.

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The relevant part of the Constitution here doesn't quite automatically make Ryan President, he could always refuse to agree to the oath of office. And I don't think it automatically resigns him from his current office either - when people in state office are elected to federal office, they have to formally resign their state office before taking office. When Obama was elected president, he had to formally resign from the Senate. So it seems like Ryan could just say no to the presidential oath of office, never resign the speakership, and remain as-is. Pence would become acting president for however long it took the house to decide between Clinton and Trump - although I'm not quite clear on one thing - with Ryan out of the picture as far as the EC goes, does the 4th place finisher come into play? - in real life, an EV was cast for Ron Paul. If that still happens here, maybe he becomes an option for the house after Ryan bows out.

Do we have any actual experts on constitutional law here?
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« Reply #6 on: January 24, 2018, 08:07:03 am »

My goodness, of course youíre right about that. I donít know why, but I think seeing a scenario where the speaker succeeded to the presidency I immediately jumped into presidential succession act mode. Thanks for the correction.
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J. J.
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« Reply #7 on: September 10, 2018, 11:17:11 am »


The relevant part of the Constitution here doesn't quite automatically make Ryan President, he could always refuse to agree to the oath of office. And I don't think it automatically resigns him from his current office either - when people in state office are elected to federal office, they have to formally resign their state office before taking office. When Obama was elected president, he had to formally resign from the Senate. So it seems like Ryan could just say no to the presidential oath of office, never resign the speakership, and remain as-is. Pence would become acting president for however long it took the house to decide between Clinton and Trump - although I'm not quite clear on one thing - with Ryan out of the picture as far as the EC goes, does the 4th place finisher come into play? - in real life, an EV was cast for Ron Paul. If that still happens here, maybe he becomes an option for the house after Ryan bows out.

Do we have any actual experts on constitutional law here?

Collin Powell had three electoral votes in 2016 and came in in 3rd place.  I can't say that I would be displeased with that choice, though I support this being decided by the electors representing how their state voted. 
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« Reply #8 on: September 11, 2018, 07:29:41 pm »

It would be far more likely that Ryan would simply cede his EV's to the candidate of his choice. There was a lot of talk of this eventuality in 1968...a deadlocked EC composed seemed very possible, and Nixon and Humphrey both wanted to stay in Wallace's good graces in case the 270th EV fell into his possession.
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Ishan
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« Reply #9 on: October 19, 2018, 04:06:41 pm »

Huey Long did this when he was Governor and was elected to the senate and was Governor for the rest of his term.

https://www.youtube.com/watch?v=nMUx4AQl5tI
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