Please correct me if I’m wrong on this. To the best of my knowledge the only offices mentioned in the U. S. Constitution are president, vice president, and president pro tempore of the Senate.
Additionally, under the terms of the Constitution and the Twelfth Amendment, the president and vice president are a) voted on separately by the electors and b) there is no requirement that the serving president and vice president represent the same political party.
(1) Article II, Section 2 makes reference to “the principal officer in each of the executive departments,” or what we call The Cabinet but it does not mandate the creation of any cabinet position per se.
The same section also makes reference to “ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.”
The 25th Amendment also makes reference to “the principal officers of the executive departments.”
(2) Yes, that is correct.
Thanks, Doug. This post actually has a number of points. The first is that the Succession Act, 3 USC § 19, is constitutionally problematic.
The second is that even at this late date the Constitution still does not give political parties as much strength or power as they presently wield. In the case of the election being thrown into the House for one reason or another or a president elect dying between the popular election and election by the electors, theoretically just about anything could happen. Hillary Clinton could be elected president and Mike Pence as vice president. Or Bernie Sanders could be elected president and Mitt Romney vice president.
Sounds right, though if you are going to include president pro tempore (legislative office), then the Speaker of the House is also mentioned (Art. I, Sec. 2), and judges, justices and chief justice are offices mentioned in Article III.
As to the second point, I think its well recognized that the failure to get a majority of electoral votes is a scenario in which the House might choose a President of one party, and the Senate a Vice-President of another.
I didn’t recall the Speaker of the House being mentioned. Thanks, PD.
Yeah, you picked up on the point I was touching on, PD. It also bears mentioning that electing elderly presidents who are in ill health may not result in outcomes as cut and dried as people might think.
Posted before reading Doug’s comments. Didn’t think of ambassadors /ministers, because these are offices that can be created. There is no requirement that there be any certain number of judges, but there certainly has to be at least one.
I don’t know that the Speaker of the House or Senate Pro Tempore needs to be an elected member of their body, traditionally they are.
The constitutional provision that allows the houses of the legislature to create their own rules suggests that it could go either way. In other words the President Pro Tempore of the Senate might be allowed to be someone other than a sitting senator while the Speaker of the House might require a sitting Congressman.
Dave,
Yes I am familiar with the arguments regarding the Constitutionality of the Succession Act. Yale Law Professor Akhil Amar wrote about this several years ago. You can access the law review article here:
http://digitalcommons.law.yale.edu/fss_papers/991/
As to the second issue, if the election is thrown into the House then the 12th Amendment appears to say that only the top three candidates who have won Electoral Votes can be considered by the House. The Vice-President is selected by the Senate from among the candidates for that office who have won Electoral Votes. So, there very well could be a POTUS from one party and VPOTUS from another.
If a President-Elect or Vice-President-Elect dies after the Election but before the Electoral College meets then, at least in theory, how to proceed would be up to the Electors.
If a candidate dies before Election Day, then party by-laws of the two major political parties appear to give the respective National Committees the authority to name an alternate candidate. However, since state law(s) determine ballot access, it’s unclear if those by-laws have any relevance or whether it would even be possible to put someone else’s name on the ballot. The Thomas Eagleton precedent from 1972, though, suggests it would be possible.
One additional point to note with regard to an Electoral College deadlock that throws the selection of a President into the House is, as I’m sure everyone knows, that in that body members vote as members of a state delegation with each state getting one vote. In the Senate, each of the (presently 100) members gets a vote for Vice-President.
And glancing through the Amir article reminds me of one other officer specifically mentioned in the Constitution. Article I, Second 3, Clause 6 provides that the “Chief Justice” shall preside in the case of a trial of a President after impeachment by the House.