Could an acting president appoint a vice president?

[Sir Mohamed]

This is an interesting hypothetical question: If somehow the Speaker of the House becomes permanent acting president for the rest of the ongoing term, is he or she then in title to appoint a vice president? It causes a confusing situation, because the speaker can’t actually become president. Only a VP fully becomes the occupant of the office; all other officers just assume the powers and duties of the presidency as acting president. But when an acting president nominates a new VP under the 25th amendment, wouldn’t the newly appointed VP, after confirmed by congress, immediately become the president? Because formally there is no president, only an acting officer fulfilling powers and duties. At the same time, the constitution also provides that the vice president becomes president when the latter office is vacant. And in this case, the office is vacant since the acting president does not hold the position. Any ideas/opinions?

To me, there are three options:

- First, it’s really the case that the speaker as acting president can (or should) appoint a new VP, who immediately becomes president upon being confirmed. However, the Speaker would not then return to his old office, since he has to resign it in accordance with the 25th. However, it also raises the question whether the Speaker – as acting president – could appoint himself for the vice presidency in order to become a real president.

- Second, it’s not possible. However, this would mean that there are de-facto limits on the powers of an acting president. But the constitution does not state that in any specific form. An acting president has the same powers than a president, like signing bills into law and make appointments to the cabinet, agencies and courts. A single exception for this case seems strange, since there is no such provision in any law.

- Third, it is entirely unclear and would have to be answered by the Supreme Court before anything happens.

I think two scenarios can be ruled out: The acting president appoints a VP, who remains VP as long as the Speaker is acting as president. It sounds absurd that you have an acting president and a full vice president. And, second, there is no such thing like an acting VP.

[Sir Mohamed]

There are some concerns about the constitutionality of the 1947 Presidential Succession Act as well, and whether legislative officers constitutionally qualify as constitutional Officers capable of acting as President.

To wit:

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If the "officers" mentioned in Article II, Section 1, Clause 6 are the same as the "officers of the United States" mentioned in Section 2, Clause 2 and Section 3, then it's pretty apparent that legislative officers don't belong on that list, and that having the Speaker and President Pro Tempore in the line of succession is unconstitutional. This is all a completely unresolved question, though, obviously.

Also, and I know this is somewhat off topic, the 1947 Presidential Succession Act is a total mess. The Speaker and President Pro Tempore have to resign to act as president. It's unclear whether they have the ability to willingly pass on being Acting President if called upon, or how long they'd have to make their choice. If they don't have the ability to pass, then for instance, Obama and Biden could have scheduled colonoscopies for the same day and forced Paul Ryan and Orrin Hatch from office. Of course, if they did so, Kerry would have been forced to act as president, and in so doing resign from his post as Secretary of State. How does it make sense for a cabinet secretary, who is in line to act as president by virtue of holding a cabinet post, to have to resign that post to act as president? When the Vice President acts as president he's not required to resign the Vice Presidency. Why should a Cabinet official? Note: previous versions of the Presidential Succession Act did not do this. Previous versions also specified a means for a special election in the case of a double vacancy.

Probably because the Vice President, when acting as president, is only temporarily in charge. He only acts as president when the latter can't execute his powers, but is de facto still the president. For example during a surgery. If the vice president succeeds to the president, is also required to "leave" the vice presidential office (I don't know whether a vice president could refuse to take over). The difference is that he assumes the role for the rest of term. So if a Speaker had to be acting president, he'd likely stay in power until the next regular election.