25th Amendment Loophole?

[jpj1421]

I'm kind of looking for other people's thoughts here. Let's say the Vice President is just hours away from impeachment, when suddenly, the President has been attacked, leaving them disabled. Since the 25th amendment requires the Vice President to invoke it, what happens if he refuses to, or is unable to do in the time frame required? Who's in charge? Or, if he does successfully make himself Acting President and is then impeached, does his authority pass to the Speaker?

This may have to do with the government sim I play. And I may need an answer when I wake up tomorrow morning, heh.

[NickCT]

I've never heard of that potential loophole, the one I'm fascinated by lies in the Presidential Line of Succession.

One cannot be in two branches of the federal gov't at once.

So if the VP is gone than the Speaker is sworn in. Now the Speaker would have to resign in order to become President but once he's done that he is no longer in the line of succession (technically). And he can't be both at the same time...

[jpj1421]

I've never heard of that potential loophole, the one I'm fascinated by lies in the Presidential Line of Succession.

One cannot be in two branches of the federal gov't at once.

So if the VP is gone than the Speaker is sworn in. Now the Speaker would have to resign in order to become President but once he's done that he is no longer in the line of succession (technically). And he can't be both at the same time...

Well, that's the thing. The 25th amendment requires the Vice President and the Cabinet to declare a disability. If there's no Vice President, can a disability be declared, and can the Speaker of the House become Acting President at that point? Or is the President just in a hospital unconscious and no one has the authority to do anything?

And from what I understand, the Speaker doesn't have to be a member of Congress to be Speaker...Henry Clay was Speaker before taking office, I believe. So he would resign his Congressional seat, but not his Office as Speaker, I would imagine.

[NickCT]

And from what I understand, the Speaker doesn't have to be a member of Congress to be Speaker...Henry Clay was Speaker before taking office, I believe. So he would resign his Congressional seat, but not his Office as Speaker, I would imagine.

ahh, i see, but still isn't the speaker a federal office holder?

[NickCT]

ahh, i see, but still isn't the speaker a federal office holder?

and as for your question, going off of the movie Air Force One (probably not the best source, but hey)

the President is President until a disability is declared.

and for the question of being impeached wouldn't the impeachment be to remove him from the Vice Presidency?

[jpj1421]

and as for your question, going off of the movie Air Force One (probably not the best source, but hey)

the President is President until a disability is declared.

and for the question of being impeached wouldn't the impeachment be to remove him from the Vice Presidency?

Right, the impeachment would remove the Vice President before he had a chance to invoke the 25th amendment. So, if there's no Vice President, can it be invoked as per Section 4? I'm kind of thinking...maybe. I think the Supreme Court would need to get involved.

[Hyperion]

The line of succession is pretty clear.

If the President dies or something, the Vice President takes over. If the Vice President also dies or is unable to take over, the Speaker of the House takes over, and if the Speaker is dead or unavailable, they'll move onto the next position.

http://en.wikipedia.org/wiki/United_States_presidential_line_of_succession

This is why for big events like the State of the Union speech, when most everyone is at the Capital, you always have one odd person at another location. If everyone dies at the Capital, the Secretary of the Interior would be safe setting in some bunker in Ohio or somewhere and take over or something.

More than likely if the VP was looking at impeachment, he or she would take over as POTUS, at least temporarily, look to pick a VP quickly, and then step aside.

[jpj1421]

Alright, let's pose the question a different way...say an assassin opened fire on VPOTUS and POTUS, killing VPOTUS, but putting POTUS in a coma...who has the authority to declare the POTUS 'disabled' and allow the Speaker to act as President. The 25th gives that power explicitly to the VP and the cabinet, but if there is no...VP how can a POTUS be deemed disabled in a Constitutionally sound manner?

[RazeByFire]

Alright, let's pose the question a different way...say an assassin opened fire on VPOTUS and POTUS, killing VPOTUS, but putting POTUS in a coma...who has the authority to declare the POTUS 'disabled' and allow the Speaker to act as President. The 25th gives that power explicitly to the VP and the cabinet, but if there is no...VP how can a POTUS be deemed disabled in a Constitutionally sound manner?

Impeachment proceeding due to diminished capacity might work, though I doubt everyone would go that route. POTUS would be out whether he woke up or not.

We're probably looking at some sort of meeting in which the Court and Congress decide in a few hours what to do while the next CLEAR successor does anything necessary. Similar to a war scenario where the first few are killed.

SecDef, I believe. Government functions requiring an active executive shutdown, no bills are brought before the Chief Executive, etc. SecDef runs anything essential until it's ironed out as Temporary Acting President.

[NickCT]

I read up on it in terms of your sim. Since the charges weren't extremely serious (aka: perjury about sex not treason) I think the senate would acquit the VP and let him take over.

[Mikestone8]

As long as the VP is in office he can still act. Being undser impeachment changes nothing unless/until he is convicted.

Assuming he is co0nvicted, then the Constitution (the original one, not the 25A) gives Congress the power to determiine which officer shall act "in the case of the death, resignation, removal or inability of both President and Vice President". At the moment, that would be the Speaker. So he can still claim the Acting Presidency. The only problem would be if the President (like Wilson in 1919-21) keeps insisting that he is perfectly fit and refuses to hand over power even temporarily; then their could indeed be trouble and there might have to be a Supreme Court ruling.

[Mikestone8]

ahh, i see, but still isn't the speaker a federal office holder?


That has been a long argued question.

He is certainly an Officer of the House of Representatives, but it is less clear whether he is an "Officer of the United States". He is not appointed by the President or confirmed by the Senate, as the Constitution requires for all "Officers of the United States whose appointments are not herein otherwise provided for". OTOH, the Constitution does empower the HoR to "choose their Speaker and other Officers", and empowers Congress to determine which "Officer" (not "Officer of the United States") shall act, so he could be regarded as coming under the "otherwise provided for" clause.

The same issues apply to the President Pro-tem of the Senate. Personally (and if a foreigner may be so bold) I have always though that the 1947 Succession Act was a big blunder. The 1886 one, providing a line of succession made up purely of Cabinet officers, was imho far better.

[Ghost 88]

The same issues apply to the President Pro-tem of the Senate. Personally (and if a foreigner may be so bold) I have always though that the 1947 Succession Act was a big blunder. The 1886 one, providing a line of succession made up purely of Cabinet officers, was imho far better.
This would work in a Parlimentary system like yours as most if not all of your cabinet ministers are known at election time, and "elected " by the people.
Here no cabinet member is elected or for the most part know to the public pre-election.
True most of the current Presidents cabinet is likely to remain if he is reelected, but he could replace each and everyone if he so choses.
As is the Speaker and Pres-Pro-tem are elected. In fact The Speaker of the House is for all practical purposes is the same as your Prime Minister before the Crown became a figurehead, The President being our head of state.

[Mikestone8]

This would work in a Parlimentary system like yours as most if not all of your cabinet ministers are known at election time, and "elected " by the people.
Here no cabinet member is elected or for the most part know to the public pre-election.
True most of the current Presidents cabinet is likely to remain if he is reelected, but he could replace each and everyone if he so choses.
As is the Speaker and Pres-Pro-tem are elected. In fact The Speaker of the House is for all practical purposes is the same as your Prime Minister before the Crown became a figurehead, The President being our head of state.


Trouble is that the Speaker and Ppt are not necessarily of the same party as the President, so that a double vacancy could in effect reverse the verdict of the last election. At least a Sec of State is generally of the same party as the President who appointed him.

However, I suppose the 25A has gone a long way to make the problem moot.

[TheKinkster]

The Speaker has to resign from the House upon his swearing-in. He doesn't necessarily have to resign the Speaker-ship, though I think that would depend on if the situation were a temporary one (a la The West Wing), or one of death or permanent disability.

[Mikestone8]

The Speaker has to resign from the House upon his swearing-in. He doesn't necessarily have to resign the Speaker-ship, though I think that would depend on if the situation were a temporary one (a la The West Wing), or one of death or permanent disability.


According to this, he has to resign both positions.

United States Statutes at Large, 1947, pp. 380-381

AN ACT
To provide for the performance of the duties of the office of President in case of the removal, resignation, death, or inability both of the President and Vice President.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That

(a)(1)if, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

[Derek Jackson]

The big hole is no provision for disabiliyt if there is no vp

[NickCT]

According to this, he has to resign both positions.

United States Statutes at Large, 1947, pp. 380-381

AN ACT
To provide for the performance of the duties of the office of President in case of the removal, resignation, death, or inability both of the President and Vice President.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That

(a)(1)if, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

so i guess the actual law implies that the technical former Speaker is next-in-line, correct?

[jpj1421]

The big hole is no provision for disabiliyt if there is no vp

Yes, exactly. I'm a...working on some creative constitutionalism to get to a solution.

[dilbert719]

so i guess the actual law implies that the technical former Speaker is next-in-line, correct?

Sort of. The way it looks to me is that the Speaker of the House is in line, and it is the act of resigning his position as Speaker and Representative which triggers his ascension to the Presidency. Since he's Speaker until that point, it's not that the former Speaker is in line, but that he becomes former Speaker during the process of becoming Acting President.

[Hyperion]

Trouble is that the Speaker and Ppt are not necessarily of the same party as the President, so that a double vacancy could in effect reverse the verdict of the last election. At least a Sec of State is generally of the same party as the President who appointed him.

However, I suppose the 25A has gone a long way to make the problem moot.

Presidents have crossed the party line before in appointing or keeping a person in a Cabinet position, ie Obama keeping Robett Gates as Secretary of Defense. Depends on the POTUS, depends on the job he's looking to have filled.

[jpj1421]

To update, the VP is Acting President and we're waiting on the impeachment to be made official. Thank goodness I read Fear, Loathing and Gumbo.

[Derek Jackson]

Of course depending on the chutpa of the VP he could be presiding over his own trial

[fscott]

A thought came to me that based on many factors the impeachment might be dropped. If the offense was less than someone other then the Vice President becoming POTUS, like Agnew even though he wasn't impeached. If the Speaker of the House was very unfit. If for what ever reason the country needed unity. These unlikely but possible. After all later they could impeach the new POTUS as long as the first trial was dismissed.