Published On: November 3rd, 2020

As if we did not have anything else on our collective plates as a society, we now have to deal with a bizarre presentation by Speaker of the House Nancy Pelosi regarding Presidential Succession, three weeks before a Presidential election. Out came a big chart of Section 4 of the 25th Amendment highlighting “of such other body as Congress may by law provide.” The Speaker assured us in nervous tones that this had nothing to do with the President’s virus diagnosis – no, it was for future Presidents. Her new idea is that a Commission on Presidential Succession (this is the “such other body as Congress may by law provide”) might declare President Biden or President Trump unfit to serve and the Vice-President would then assume the office as Acting President. If death, permanent impairment, or resignation is the issue a new Vice-President would be nominated by the Acting President to be confirmed by Congress. But if Congress stalls or delays the confirmation process (as it did for Nelson Rockefeller when Gerald Ford became President after Richard Nixon’s resignation) and something would happen to the Acting President (disease, accident, assassination, resignation) before a new Vice-President was officially confirmed, then Nancy Pelosi would become Acting President. She would nominate her own Vice-President to be confirmed by Congress. ALERT:  Congress need but delay confirming a successor (Vice-President) to the Acting President and the Speaker becomes President if something should happen to the Acting President.

The bottom line is that between the 25th Amendment and the 1947 Presidential Succession Act, it is possible to have the public vote in one political Party as President and Vice-President only to have the political Party that was defeated actually take the reins of power. EXAMPLE: When Nixon, Republican, resigned, Gerald Ford became Acting President and Nelson Rockefeller was nominated as Vice-President. Congress delayed confirming him. Had Gerald Ford died before Nelson Rockefeller was confirmed, Carl Albert, Democrat would have become Acting President of the United States. The public would have voted for Republicans and ended up with Democrats. The reverse, of course, could also occur.

The following scenario involves health, not resignation. You will recall that Woodrow Wilson had a series of strokes while President. You will recall James Garfield lay stricken for months with a wound from an assassin as did William McKinley. You will recall the assassination attempt on Ronald Reagan and the surgery that followed. Imagine that Republican Donald Trump wins re-election in 2020. The House is retained by the Democrats. The Senate goes to the Democrats. The cries go out, as we experienced in 2016, that President Trump is mentally unfit for office. Under the 25th Amendment the President himself can transmit to Congress written notification of his inability to discharge his duties or a majority of his cabinet and the Vice-President can do the same. The Vice-President becomes Acting President. When the President recovers he can then let Congress know, in writing, that he can resume his duties, and he resumes his duties UNLESS the Vice-President and a majority of the cabinet say “no” OR Nancy Pelosi’s new Commission says “no” and then each House of Congress votes on whether the President is able to discharge his duties and can say “no” by a 2/3 vote. The Vice-President will then become the Acting President if Congress refuses to allow the President to resume his duties. If the Vice-President as Acting President, dies or has a permanent impairment before he is able to nominate and confirm a Vice-President, then the Speaker of the House would become President and would nominate her own Vice-President. This is how the losing Party in a Presidential race can actually become President.

President John F Kennedy with Vice President Lyndon B Johnson

President John F. Kennedy with Vice President Lyndon B. Johnson. Image credit: LBJ Presidential Library

The Speaker proposes a medical Presidential Succession Commission of 16 members, half Republican, and half Democrat, with the 17th an experienced public servant. Is it possible, then, to get members of the President’s own Party on this Commission to vote that he is incapable of discharging his duties even if he is capable? Yes, it is! We have seen with the Presidential Debate Commission, half of which are to be of both Parties, that not one of the Republicans supports the nominee of their own Party. A very strange situation but that is the bizarre reality we live in. So, follow how this might work with the current President should Speaker Pelosi’s Commission idea be enacted:

  1. The President has a slight stroke. He informs Congress in writing and the Vice-President becomes Acting President.
  2. The President recovers and informs Congress in writing that he is able to resume his duties.
  3. Congress convenes the newly formed Presidential Succession Commission of medical persons and they vote by a majority that the President is not fit to resume his duties. A group of medical experts would put great pressure on Congress to vote as they have voted or risk “not following science.”
  4. Congress convenes and by 2/3 of both Houses of Congress concludes the President is unfit to resume his duties. The Vice-President becomes Acting President. The Acting President dies before he can nominate and confirm a Vice-President, and the Speaker becomes Acting President by the 1947 statute.

If the President was in fact recovered enough to be able to carry out his duties and was denied the right to resume his duties, then that would be a soft coup. The Supreme Court has no role nor does any other Court.There is no redress for this outcome. It could also occur within a Party should one Party have all three branches of the federal machinery. James Madison thought that the correct replacement for a President who cannot carry out his or her duties or in a situation where the Vice-President dies at the same time as the President (this almost occurred with John F. Kennedy and Lyndon B. Johnson – luckily they were in separate cars when the President was assassinated ) is someone from the President’s cabinet, so that the will of the voter would still prevail through the President’s selection of that person. Miss Constitution would nix Speaker Pelosi’s idea of a medical Presidential Succession Commission and Miss Constitution would also suggest that Congress repeal the Presidential Succession Act of 1947 and return to James Madison’s idea of a Cabinet member as possible Acting President. Is this mischief of Speaker Pelosi a diversion, an attention-getter, or a warning?

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    About the Author: Miss C

    M.E. Boyd, "Miss Constitution" is an attorney, author, and instructor in Business, Educational, and Constitutional Law. She has appeared on television and radio and speaks publicly on American history, the founding documents, and current political issues. Her mission is to help citizens understand the Founding philosophies behind the system so that we can-together-help preserve the blessings of liberty and prosperity. Read more about Miss C