Sparks Commentary: 10 “what if” scenarios that could create constitutional crises (in some places) …

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve upon the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President be elected."

- Article 2, Section 1, Paragraph 5 of the original Constitution (which was partially changed by constitutional amendments, as I will describe later here)

The true test of a country is how it handles emergencies ...

The Constitution is well-equipped to handle the routine and the mundane, and the periods of relative stability that have marked most of this country's history. But this country's Constitution is also well-equipped to handle periods of chaos and instability where elected officials die, or resign, or become otherwise ineligible through disability. The true test of a country is sometimes found in how it handles these contingencies, and the other emergencies that it can face in its history. Thus, the Constitution has a number of backup plans about how to deal with these things. Some of them come from the original Constitution itself, and the clauses related to the succession of presidents and other elected officials. But other backup plans come from the amendments that were made since that time; and a review of these things might thus be helpful here, to show how the Constitution handles these unusual emergency situations.

White House

If there are vacancies in the Senate or House of Representatives ...

Regarding the House of Representatives, the Constitution says that "When vacancies happen in the representation from any State, the Executive Authority thereof shall issue writs of election to fill such vacancies." (Source: Article 1, Section 2, Paragraph 4) Regarding the Senate, the Constitution says that "The President shall have power to fill up all vacancies that may happen during the Recess of the Senate, by granting commissions, which shall expire at the end of their next session." (Source: Article 2, Section 2, Paragraph 3) A later amendment modified this slightly in 1913, by saying that "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the Legislature of any State may empower the Executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct." (Source: Seventeenth Amendment, Section 2)

Capitol Dome at night

If there are vacancies in the judicial branch, or various parts of the executive branch ...

And as far as the judicial branch goes, the Constitution says that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." (Source: Article 2, Section 2, Paragraph 2) This also applies to many (and perhaps even most) members of the executive branch.

Supreme Court of the United States

If the president (or president elect) dies, or is not yet qualified to become president ...

At the time I write this, four presidents have died of natural causes while in office. These were William Henry Harrison, Zachary Taylor, Warren G. Harding, and Franklin Delano Roosevelt. And at the time I write this, four presidents have been assassinated while in office. These were Abraham Lincoln, James A. Garfield, William McKinley, and John F. Kennedy. The succession clauses then in effect said only that the office of president shall "devolve" upon the Vice President, who shall then "act" as president. It did not say explicitly that the person would "become" president, but only that the person would "act" as president. Nonetheless, the people of that time correctly interpreted the Constitution to mean that the person would "become" president, even if the Constitution did not say so explicitly. The first person to take over when a prior president died was John Tyler, and he set the precedent that the person would "become" president after the previous president died. A later amendment made this more explicit, by saying that "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President." (Source: Twenty-Fifth Amendment, Section 1) The Twentieth Amendment - which was ratified earlier in 1933 - also said that "If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice-President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified, and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice-President shall have qualified." (Source: Twentieth Amendment, Section 3)

Lyndon B. Johnson taking the presidential oath of office aboard Air Force One, 1963 -

just hours after the Kennedy assassination caused the vacancy in the White House that he would now be filling

If no presidential candidate has a majority in the elections ...

The most substantial clauses about presidential elections are in the Twelfth Amendment, which was ratified in 1804. In the words of this amendment: "The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice." (Source: Twelfth Amendment, Section 1) This amendment actually became particularly important in the presidential elections of 1824, when none of the candidates had a majority of the electors. Andrew Jackson actually had the highest number of any of the candidates; but since he didn't have a majority, either, the choice instead fell upon the House of Representatives, which instead chose John Quincy Adams as the nation's next president.

John Quincy Adams, the only president to be chosen by the House of Representatives

via these provisions in the Twelfth Amendment

If no vice presidential candidate has a majority in the elections ...

The Twelfth Amendment also says that "The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such numbers be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for that purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice." (Source: Twelfth Amendment, Section 2) This is interesting when you consider that the Vice President is the President of the Senate, and the Senate is thus allowed to choose its own leadership in this situation; although the House of Representatives has the greater power of choosing the president. In 1824 (the election that I mentioned earlier), the House of Representatives had chosen John Quincy Adams as the nation's next president. This is because no presidential candidate had a majority of the electors at this time, and the choice thus fell upon them. But the situation was different in the vice presidential race of that year, where one candidate did have a clear majority of the electors at this time. In this election, John C. Calhoun was elected vice president in the traditional way in 1824; and although he was Mr. Adams' running mate, it seems to have been a coincidence that the two of them were chosen together. (The system did not "require" anyone to do this.) Although the Senate did not get to choose the vice president at this time, there were some elections later on where they were able to do so. These were the presidential (and vice presidential) elections of 1836, where Martin Van Buren was the clear winner in the presidential race by both popular and electoral votes. The president-elect at that time was thus chosen in the traditional way (which was Van Buren), but none of the candidates for vice president received a majority of the electors then. Thus, the choice actually fell upon the Senate, and they elected Richard Mentor Johnson as the nation's next vice president. Although he had been Van Buren's running mate, it seems to have been a coincidence again that the two of them were chosen together; since the Constitution did not "require" the Senate to do this.

Richard Mentor Johnson, the only vice president to be chosen by the Senate

via these provisions in the Twelfth Amendment

If the presidential candidates that the Congress can choose from have died ...

The Twentieth Amendment also had one other addition to the rules of the presidential elections. Specifically, it said that "The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them" (Source: Twentieth Amendment, Section 4) At the time that I write this, this section has never been invoked; although it is, of course, possible that it could be at some later point. One hopes that it won't be, given the tragic circumstances that would be required to make this happen.

White House

If there's a vacancy in the office of the Vice President ...

This is where the Twenty-Fifth Amendment - which was ratified in 1967 - becomes somewhat groundbreaking, and becomes a departure from prior clauses on this subject. It says that "Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take the office upon confirmation by a majority vote of both houses of Congress." (Source: Twenty-Fifth Amendment, Section 2) This was actually invoked in 1973 when Vice President Spiro Agnew was forced to resign, and President Richard Nixon thus nominated Gerald Ford to fill the vacancy. When Nixon was thus subsequently forced to resign himself, Gerald Ford became the president of the United States - the only president ever to take the office without having been elected as president or vice president. (Afterwards, President Ford nominated Nelson Rockefeller to fill the vacancy in the office of the Vice President. He got his way, and Rockefeller became vice president at this time. This is the only other time that this part of the Twenty-Fifth Amendment was invoked.)

Gerald Ford, who became vice president (and later president) because of this section of the amendment

If the president wants to have someone take over for him (or her) as Acting President ...

The Twenty-Fifth Amendment continues: "Whenever the President transmits to the President Pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President." (Source: Twenty-Fifth Amendment, Section 3) This was invoked once during the Ronald Reagan administration, when he underwent surgery that made him temporarily unable to discharge the "powers and duties of his office." With Mr. Reagan's permission, George H. W. Bush thus took over as Acting President, until Reagan's recovery allowed him to resume the "powers and duties of his office" (about eight or nine hours later). This was also invoked twice during the George W. Bush administration for the same reason, for the exact same kind of surgery. Vice President Dick Cheney thus took over twice as Acting President, each time for about two hours or so.

Dick Cheney, who became Acting President temporarily during George W. Bush's surgery

via this section of the Twenty-Fifth Amendment

If the Cabinet wants someone to take over for the president without his (or her) permission ...

There is also a provision to do this against the president's wishes, although this provision cannot be invoked permanently without the president's consent, and can be withdrawn at any time - something that creates tremendous pressure for the people involved to do so, since the nation will usually see the targeted president as the "rightful president" unless something big happens. (Removal by impeachment, by contrast, is permanent; and applies only if the president has committed a crime that they are duly convicted of in Congress.) Quoting again from the Twenty-Fifth Amendment here: "Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President." (Source: Twenty-Fifth Amendment, Section 4) This has only come close to being invoked twice, both times during the administration of Ronald Reagan. Ironically, President Reagan actually turned out to be all right with this later on; but the circumstances of these contemplated invocations - one of which involved a serious assassination attempt that shot and wounded him - also prevented him from giving his permission for this action in advance. Thus, Vice President George H. W. Bush almost took over as Acting President during these times, and Ronald Reagan resumed his duties when he felt better - which actually turned out to be fairly quickly.

President Ronald Reagan, a few weeks after an attempt to assassinate him in 1981,

which caused people to seriously consider invoking this section of the Twenty-Fifth Amendment

If the president later wants to resume his (or her) office ...

And finally, there is a provision for the president to again resume the office in the final paragraph of this section. I quote from this section now: "Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmits within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office." (Source: Twenty-Fifth Amendment, Section 5)

George W. Bush, who resumed his office after a surgery via another section of the Twenty-Fifth Amendment

Conclusion: The Constitution has a backup plan for virtually everything

Thus the Constitution is prepared with backup plans for any number of contingencies, particularly when it comes to the president and his (or her) law-enforcement duties. A vacancy in a few seats of Congress is not as serious an issue as the vacancies in the presidency, of course. Thus, there have been far more clauses related to presidential succession and disability than to any other office. Nonetheless, the clauses about all of these backup plans are important, and they have been modified more than once by the various amendments to the Constitution. I hope that this has given people an idea here of how the Constitution deals with these emergencies; and particularly those emergencies involving the administration of the law, and the protections from senseless violence that it gives us.

Footnote to this blog post:

In the Federalist Papers, Alexander Hamilton wrote: "In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward." (Source: Federalist No. 22)

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The Constitution