Someone on GAW introduced me to the "Ford Play" yesterday. Nixon's VP was originally Spiro Agnew. Agnew resigned in 1973 over an income tax scandal and was replaced by Gerald Ford. Less than a year later, Nixon resigned and Ford became POTUS without ever receiving a vote. This is something to keep in mind.
edit: There is potentially a Constitutional loophole that could even allow for Obama himself to become POTUS for a third term. The 22nd amendment prohibits anyone from being "ELECTED" to POTUS more than twice, but as you can see from the Ford Play above, Ford was never elected to POTUS at all. Something else to keep in mind.
edit 2: since I got stickied (Thanks), I want to add that I'm not making a prediction here at all. Even if research on this idea checks out, I would still say that it's only one of many possible DS plans. Not all plans get used. Not all plans work out. Just something to keep in mind.
Theory checks out. Text of the Constitution is clear. We're not even really talking theory, given that Ford was indeed the only unelected president in our history. He was appointed VP to replace Agnew and succeeded Nixon after his resignation. If there was a plot to put somebody into the presidency and bypass an election, this is the way. Keep in mind the most important part of this: VP appointment requires a MAJORITY approval vote of both Houses of Congress. Relevant to the current makeup, without a VP, there can't be a tiebreaking vote in the Senate. So say Kamala resigned, in theory it could be a deadlock 50-50 for anyone Biden nominated. Important to note that an approval vote by Congress is NOT an "election" as described by the Constitution. The presidential electoral process is spelled out quite clearly. The term limit implemented by the 22nd Amendment clearly states "elected" and thus a person who "becomes" president through appointment and succession is NOT elected. As ready stated, the wordage could have been much simpler: "no person may hold the office of President for more than 2 full terms or a maximum of 10 years" etc. But that's not what the text says. From a textual interpretation, this reading holds water. Even from an originalist interpretation, this ready holds because the original meaning of the word "elected" meant the same as it does now. Perhaps it was not the intent of the Congress to allow for this loop hole, but the 22nd was passed and ratified BEFORE the presidential order of succession was more firmly established in the 25th Amendment. The assumption of the earlier Congress was likely that the original intent of the Framers was to be preserved as far as what was to happen in a presidential vacancy: the VP would become acting president until a new election would be held. Problem is that the text of the Constitution is ambiguous as to whether that meant until the next "scheduled" election or immediate. In all of my study of the Constitutional convention, and history since it, the more correct understanding would be that a new election should be held IMMEDIATELY. The Constitution doesn't say "all presidential elections must occur on this date." It allows for special elections should vacanies occur. Granted, it eventually would be amended to specific term starts and finishes. But that only happened because of the long-standing inconclusive understanding of the text. When John Tyler assumed office, there was debate about whether he became president or was, according to Article II, to "ACT" as President. His party controlled Congress and thus, his move wasn't seriously challenged. Same thing when Johnson succeeded Lincoln. Same with McKinley etc. Sure there was federal statutory law to deal with line of succession past the VP, but that wasn't until 1947 and it still didn't address the issue over "becomes" president or "acts" as president, pending a new election or when such election should occur.
The 25th did remedy much of the issues with presidential succession, but the loophole of the 22nd is still very much legitimate. Granted, I've never been in favor of any kind of term limits as such they violate a person's equal protection right to serve. The Framers had that debate and the prevailing view was no limits. If Washington or Lincoln (or Trump) wanted to serve for life and the people and Electors wanted them to do so, then why not? Why punish the nation to bar a qualified, desired candidate from holding any office? Term limits were built in... they are called ELECTIONS. Of course, this assumes that elections are fair and reliable, which is our actual problem, not the lack of limits. And as for the appointment process, I don't even object to that as it'd still require a vote of Congress to approve. Frankly, direct election of the president, which we basically now have because of the state winner-take-all general ticket method, and illegal constraints denying Electors their constitutional right to vote as independent agents, is stupid and dangerous. At least with a vote of Congress, it'd be in keeping more with the original intent of the Constitution and the Framers. If more people realized the importance of Congress in these processes, maybe they'd give more shits about voting in their local elections as opposed to only caring about the presidential election... but such is the consequence of the expansion of the office and national party politics.
All very interesting! I thought the most interesting part was the potential for a dead locked Senate in the nomination of a VP. Couple of random questions: Can the 25th be enacted if the Office of VP is vacant? Can an acting VP be appointed if there is a delay in confirming a new VP? Would the Speaker move up to POTUS only if both offices of VP and POTUS were vacant?
edit: we're in a funny spot right now where there are rumors of POTUS, VP and Speaker all ready to leave. Plus #3 in succession (Leahy) is ready to check out too.
Per the 25th, if presidency is vacant, VP becomes POTUS, thus ending the ambiguity over "acts" or "becomes." And this is only in cases of actual vacancy, such as death, removal or resignation. Temporary inability to discharge powers, VP is just acting president.
For a simultaneous POTUS and VP vacancy, we must turn to statutory law. The Speaker, Pro Temp, Sec of State etc down the list shall ACT as (but really, become) president "until the expiration of the then current Presidential term," except in cases of qualification (disputed election) or inability to discharge powers (25th Amendment). In said cases, they'd be acting president until the president/VP-elect qualifies or disability removed.
But interestingly, as to your questions, delays and confusion could cause chaos. Let's use December of 2020 as a hypothetical example...
POTUS (Trump) and VP (Pence) both resign. Speaker (Pelosi) becomes POTUS. But before a VP replacement can be appointed and approved by Congress, the [Trump] cabinet, before they can be replaced, uses the 25th on the former Speaker turned POTUS (Pelosi), on account of disability. House hasn't been able to vote on a new Speaker yet. So now we have POTUS, VP and Speaker all vacant. Next in line to be acting POTUS is President Pro Tempore (trust Grassley). Say this individual is then 25th'd by the Cabinet on account of disability, or resigns, then Sec of State (trust Kanasas) is up, assuming Senate has no time to vote in a new pro tempore. Keep in mind that in this hypothetical, if Pelosi is a case of inability to discharge duties, then Grassley and/or Pompeo is only acting president until disability is removed, which could theoretically be never.
Lots of fun games could be played if there was a highly coordinated effort.
That would be fun. They really should do things like that more often. Thanks!
edit: That would be a creative way to kick someone out of their office, wouldn't it? In your hypothetical Nancy could lose Speaker, become POTUS and then become unemployed in a matter of minutes and never know until after the fact. Could that be done without being disclosed to public?
Exactly. I suppose some of these hypothetical chess moves could be kept secret from the public under the claim of impact on national security.
The removal of powers due to disability under the 25th amendment can be ended by the president simply submitting a written statement to Congress saying they aren't unable to be president. So it wouldn't ever stick, as Pelosi would just have to simply submit a short written letter to Congress and she'd be back in power. That is built really for comas or if the president had surgery but had a bad recovery or something, where they literally couldn't just write and submit a simple letter to Congress.
If Congress is not in session, there's a 21 day window. Lot of things can happen over 21 days.