Who would legally be the president in this absurd scenario?

[Ferguson97]

I know it's absurd and it is politically never going to happen for a variety of reasons, but I thought of it and was curious about the constitutional answer.

The electoral college is tied at 269-269.

The new House delegations are tied 25 Democrats and 25 Republicans. The contingent election for president is tied at 25-25.

The new Senate is 50-50 and the subsequent contingent election for vice president is tied at 50-50.

Normally, the incumbent Vice President would break this tie (presumably voting for his party's vice presidential nominee), but in this scenario the Vice President has died. And the President cannot obtain a majority in the House or Senate to confirm them to the position.

The Constitution is clear. The Speaker of the House becomes Acting President until Congress ends the deadlock.

However, the Speaker has yet to be elected because the new House is tied at 217-217. It was originally 218-217, but a representative-elect died before they could be seated. The House held the election for speaker and it was tied 217-217.

The representative who died was from a large state, and the vacancy will not effect the House's contingent presidential election. It's still tied at 25-25.

But the special election isn't until February 15. It was the earliest they could 

So moving down the line of succession, the president pro tempore of the Senate would become Acting President, right? ... But who is the president pro tempore? Without a vice president, neither party can claim a majority in the 50-50 senate.

Moving further down the line of succession... the Secretary of State? Wouldn't their term expire after January 20, removing them from the line of succession?

Eventually there will be the House special election - likely the single most expensive special election in the history of the United States, since it's effectively a vote for President - and the new Speaker of the House will be Acting President. Not ideal, but the Constitution is clear that they will be Acting President until the House and the Senate break the tie.

BUT who would become Acting President from January 20 until the new representative is elected and the new speaker's election can take place?

[Mr. Morden]

Moving further down the line of succession... the Secretary of State? Wouldn't their term expire after January 20, removing them from the line of succession?

No, I don’t think that’s how it works.  If a replacement for their position hasn’t been confirmed yet, then I believe the outgoing Cabinet members will typically resign on Jan. 20th and let a non-political deputy serve as an interim Cabinet officer.  E.g., Pompeo resigned on Jan. 20th, 2021 and let this guy take over as Secretary of State for 6 days, before Blinken was confirmed:

https://en.wikipedia.org/wiki/Daniel_Bennett_Smith

But there’s no law that says the outgoing Cabinet has to resign on Jan. 20th, and they’re not automatically kicked out of office on that day.  I mean, Robert Gates was appointed Secretary of Defense by GW Bush in 2006, and then because Obama wanted to keep him on for a while in his administration, Gates simply didn’t resign on Jan. 20th, 2009, when Obama was inaugurated.  Obama didn’t have to re-nominate him or anything.

So in a scenario like the one you’re describing, to avoid a power vacuum, I assume that the Secretary of State of the outgoing administration would simply not resign on Jan. 20th, and then serve as acting president until Congress figured something out about resolving the presidential election.

There’s a similar scenario that I floated on this forum back in 2008, after Obama won the election, but before his inauguration: What if, on Jan. 20th, 2009, at the inauguration, there was an assassination that took out Obama, Biden, and both the House Speaker and Senate President Pro Temp?  If Condoleezza Rice (Bush’s secretary of state) hasn’t resigned at that point, and a new secretary of state hasn’t been confirmed, then wouldn’t she serve as acting president because the order of succession has fallen to her, and could she hypothetically serve the entirety of what was meant to be Obama’s 2009-2013 term of office as president?

That scenario seems even more perverse, because there is no disputed election to resolve.  The election was decided in one candidate’s favor.  But because that winning candidate hasn’t had the chance to fill his Cabinet yet, it falls to a member of the cabinet of the outgoing party (that has just been decisively rejected in the election that just happened) to take his place.

[SteveRogers]

Moving further down the line of succession... the Secretary of State? Wouldn't their term expire after January 20, removing them from the line of succession?

No, I don’t think that’s how it works.  If a replacement for their position hasn’t been confirmed yet, then I believe the outgoing Cabinet members will typically resign on Jan. 20th and let a non-political deputy serve as an interim Cabinet officer.  E.g., Pompeo resigned on Jan. 20th, 2017 and let this guy take over as Secretary of State for 6 days, before Blinken was confirmed:

https://en.wikipedia.org/wiki/Daniel_Bennett_Smith

But there’s no law that says the outgoing Cabinet has to resign on Jan. 20th, and they’re not automatically kicked out of office on that day.  I mean, Robert Gates was appointed Secretary of State by GW Bush in 2006, and then because Obama wanted to keep him on for a while in his administration, Gates simply didn’t resign on Jan. 20th, 2009, when Obama was inaugurated.  Obama didn’t have to re-nominate him or anything.

So in a scenario like the one you’re describing, to avoid a power vacuum, I assume that the Secretary of State of the outgoing administration would simply not resign on Jan. 20th, and then serve as acting president until Congress figured something out about resolving the presidential election.

There’s a similar scenario that I floated on this forum back in 2008, after Obama won the election, but before his inauguration: What if, on Jan. 20th, 2009, at the inauguration, there was an assassination that took out Obama, Biden, and both the House Speaker and Senate President Pro Temp?  If Condoleezza Rice (Bush’s secretary of state) hasn’t resigned at that point, and a new secretary of state hasn’t been confirmed, then wouldn’t she serve as acting president because the order of succession has fallen to her, and could she hypothetically serve the entirety of what was meant to be Obama’s 2009-2013 term of office as president?

That scenario seems even more perverse, because there is no disputed election to resolve.  The election was decided in one candidate’s favor.  But because that winning candidate hasn’t had the chance to fill his Cabinet yet, it falls to a member of the cabinet of the outgoing party (that has just been decisively rejected in the election that just happened) to take his place.

In your Condoleeza Rice scenario, under the terms of the Presidential Succession Act the Secretary of State would only act as president until a new Speaker of Senate President pro tem was chosen who could then assume the office. That person would then finish out the rest of the term. (Of course there’s an argument that this “bumping” provision of the Succession Act is actually unconstitutional, which could open up a whole other can of worms).

[Biden his time]

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[Vosem]

Nature abhors a vacuum, so presumably somebody would switch parties or some kind of deal would be worked out in which somebody is elected Speaker of the House, and can then ascend to the Presidency. (It is unclear if it would be the Acting Presidency, incidentally: the House's mandate to pick the next President might not go away until the next presidential election, since there's no indication that it would, so possibly a new President might take office when the original election is resolved after the midterm).

A scenario sort of like this (exact tie with no tiebreaker) happened in the Tennessee Senate after the 2008 election. A Republican was convinced to switch sides in exchange for becoming the (theoretical, formal, on-paper) leader of the Democratic caucus and therefore Majority Leader, with a huge pay raise and the power to bring bills to the floor and so forth.

~~

Another odd possibility, as Morden points out, is that it could be an outgoing member of the Cabinet, particularly the outgoing Secretary of State, if they have not resigned and Congress has failed to elect officers. Members of the old Cabinet sometimes resign early for career opportunities and usually ceremonially resign when a new President is sworn in unless the new President (who has the authority to remove them) has asked them to stay, but if there is no new President then there is nothing forcing the old Cabinet members to leave office; only the outgoing President and VP have terms that 'run out'.