On tonight's episode of The West Wing,
the President invoked the Twenty-Fifth Amendment to temporarily remove himself
from office after terrorists kidnapped the First Daughter from a post-graduation
party. The Vice President having just resigned, the Republican Speaker of the
House (played by John Goodman!) was sworn in as Acting President. How accurate
is that procedure? Can the President remove himself from office?
Yes. Section three of the Twenty-Fifth Amendment provides,
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.
It's a logical assumption that in the absence of a Vice President,
the normal order of presidential succession would apply. Congress created that
order under the authority of Article II, section one:
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 on 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 shall be
elected.
and codified it in the Presidential Succession Act of 1947 (3 U.S.C. 19). The line
of succession proceeds from the Vice President to the Speaker of the House, then
the President pro tempore of the Senate, Secretary of State, Secretary of the
Treasury, Secretary of Defense, Attorney General, etc. Each officer must meet
the qualifications for the office of the president set out in Article II (35
years old, resident for 14 years, etc.).
Here's the problem, and it exists in both the West Wing
world and real life: neither the Speaker of the House, nor the President Pro-Tem
of the Senate, are Officers of the United States, which Article II requires. The
term of art "Officer of the United States" is well-understood in constitutional
law to include members of the Cabinet, but definitely not elected members of
Congress. Article I, section six, provides,
No Senator or Representative shall, during the Time for which he was
elected, be appointed to any civil Office under the Authority of the United
States, which shall have been created, or the Emoluments whereof shall have
been increased during such time; and no Person holding any Office
under the United States, shall be a Member of either House during his
Continuance in Office.
While section three has been arguably used twice (President
Reagan transferred the presidency to Vice President Bush during his colon cancer
surgery, and George W. Bush transferred command to Cheney during a colonoscopy –
Knutson, Lawrence L. "Bush resumes office following colon test," Washington
Post, June 29, 2002), we have never encountered a situation where the Vice
President's office was empty and the Speaker of the House took offic