Constitutional Question

[Lincoln Republican]

The date is January 18 2021

The Presidential inauguration is two days away, January 20 2021

President White and Vice President Black were defeated in their bid for reelection the previous November.

The winners of the election are who are now President Elect Green and Vice President Elect Brown.

President White dies from a heart attack on January 18, two days before the inauguration.

Question is:

Vice President Black of course becomes the new President until noon on January 20.

Does Vice President Black actually become President or does he in fact become Acting President?

Who should swear him in as the new President?

Please discuss.

[brucejoel99]

If a President dies, then per Section 1 of the 25th Amendment, their Vice President becomes President. Not the Acting President; full-on President. It doesn't matter whether or not it's during a presidential transition (let alone two days before a President-elect's inauguration). And the swearing-in would be treated just like any other ascension to the Presidency, meaning the Chief Justice would conduct the swearing-in (unless, of course, it's an LBJ-type situation where the new President is on the other side of the country from the Chief Justice, in which case, a public officer ranging from a judge to a notary public can conduct the swearing-in).

[SteveRogers]

If a President dies, then per Section 1 of the 25th Amendment, their Vice President becomes President. Not the Acting President; full-on President. It doesn't matter whether or not it's during a presidential transition (let alone two days before a President-elect's inauguration). And the swearing-in would be treated just like any other ascension to the Presidency, meaning the Chief Justice would conduct the swearing-in (unless, of course, it's an LBJ-type situation where the new President is on the other side of the country from the Chief Justice, in which case, a public officer ranging from a judge to a notary public can conduct the swearing-in).

This, except the swearing in is really just symbolic in this scenario. If the President dies, the Vice President becomes the president immediately, no oath of office required (probably). LBJ supposedly did the whole taking the oath on the plane thing because he was afraid AG Bobby Kennedy would find some loophole to screw him out of the presidency, so he wanted to make double-sure that he was really the president.

[brucejoel99]

If a President dies, then per Section 1 of the 25th Amendment, their Vice President becomes President. Not the Acting President; full-on President. It doesn't matter whether or not it's during a presidential transition (let alone two days before a President-elect's inauguration). And the swearing-in would be treated just like any other ascension to the Presidency, meaning the Chief Justice would conduct the swearing-in (unless, of course, it's an LBJ-type situation where the new President is on the other side of the country from the Chief Justice, in which case, a public officer ranging from a judge to a notary public can conduct the swearing-in).

This, except the swearing in is really just symbolic in this scenario. If the President dies, the Vice President becomes the president immediately, no oath of office required (probably). LBJ supposedly did the whole taking the oath on the plane thing because he was afraid AG Bobby Kennedy would find some loophole to screw him out of the presidency, so he wanted to make double-sure that he was really the president.

Yes & no. Yes, the VP does become President immediately upon the death of the preceding President, but no, the swearing-in isn't just symbolic. Per Article II, Section One, Clause 8, the VP-turned-President would be required to take the oath before they're able to exercise or carry out any presidential powers or duties.

(And according to Robert Caro, aka the world's leading LBJ expert, Bobby only influenced LBJ's swearing-in insomuch as LBJ demanded legal advice from him on how to take the oath of office. Personally, I've always interpreted it as LBJ trying to rub it in the distraught RFK's face that it was LBJ who was in charge now, but perhaps I've just re-watched The Kennedys miniseries too many times for my own good lol)