Posts Tagged ‘President’

Just Acting?

Saturday, 30 December 2023

This entry deals with a Constitutional question that is only technical, and of trivial importance.

The Twenty-Fifth Amendment to the US Constitution was ratified and adopted on 10 February 1967. Section 1 reads

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

which would be rather peculiar, if the Constitution had already said as much. But what the Constitution had actually said, in Article II Section 1 Paragraph 6, was

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.

(Underscores mine.) A friend once reported to me that, after the death of William Henry Harrison, on the first occasion when Congress sent a bill to John Tyler, they addressed him as Acting President; Tyler returned the bill neither signed nor vetoed, asserting that he were not mere Acting President, but simply President. Congress returned the bill, addressing him as President, and Tyler signed it. Thereäfter, it was almost perfectly accepted that the Vice President became indeed the President after a President resigned or died or were removed. But, had the acceptance been indeed perfect, then Section 1 of the Twenty-Fifth Amendment would have been perfectly superfluous. However, I don't think that it properly were superfluous.

My primary argument is fairly straight-forward. The Constitution did not say that the Vice President became President. Indeed, the section lists Inability alongside the other conditions under which the Powers and Duties devolve, and declares that devolution revoked in cases in which the Disability be removed; if the same words about devolution mean taking the Office in other cases, we would have to take it that the Vice President became President during these times of temporary disability, only to lose the Office itself when the prior fellow recovered. Adlai Ewing Stevenson would briefly have been President in July of 1893; Richard Milhous Nixon repeatedly in the 1950s, as Eisenhower had a heart attack and then a stroke, and still later underwent surgery and its aftermath. Whenever a President got drunk and until he sobered-up, the Vice President would be President.

My secondary argument is more novel, but more subject to challenge. Until passage of the Twenty-Fifth Amendment, no mechanism was provided for filling a vacancy in the Office of the Vice President. In cases in which a vacancy does not obtain, no mechanism for filling it is needed, so the lack of a mechanism suggests at the vacancy were not felt. Someone might reasonably argue against my secondary reason, by noting that, prior to the adoption of the Twenty-Fifth Amendment, eight Vice Presidents left office before the ends of their terms — John C[aldwell] Calhoun resigned, the other seven died — leaving the Office vacant. In the case of William R[ufus DeVane] King (7 April 1786 – 18 April 1853) the vacancy was 1416 days. So perhaps what weren't acutely felt were just the needs for a spare and for a tie-breaker. (Note that Section 1 of Article II did provide for Congress to deal with a joint vacancy by appointing an Officer to act as President.) Still, the primary argument would hold.

I began with an admission that the question is only technical and trivial. If the Office of the Vice President remained that of the Vice President, but with the Powers and Duties of the Office of the President, then we are merely discussing a title, bragging rights.

Before 1967, four Vice Presidents took-on the Powers and Duties of the Office of the President without themselves ever winning election to that Office. These were John Tyler, Millard Filmore, Andrew Johnson, and Chester A[lan] Arthur. I say that we include them out.

Fourteenth Amendment Re-Redux

Sunday, 13 January 2013

Perhaps I'm a Constitutional hipster, in-so-far as I was talking about section 4 of the Fourteenth Amendment before it was cool to do so. After it had become cool, I felt moved to explain

[The Fourteenth Amendment] is indeed [the law that empowers the President to increase the ceiling] — where the only way not otherwise in violation of the Constitution to pay debt that has come due is to borrow beyond the existing limit. If the debt can be paid in some other way, then no special authority can be found for the President in section 4.

[…] The President doesn't get to say that he or she must raise the limit to continue funding institutions to which he or she can apply profound and moving terms, unless those institutions are indeed Constitutionally mandated.

With talk of the President raising the borrowing limit by decree again heating-up, I feel moved to labor aspects of what I'd earlier explained.

As debt comes due, for which sufficient funding has not been allocated, the Federal government can do one or more of five things:

  • Default.
  • Increase tax collections.
  • Decrease other expenditures to allocate more revenue for debt service.
  • Liquidate assets.
  • Engage in new borrowing to service the debts from previous borrowing.
Advocates of the President raising the ceiling by decree want to pretend that the Constitutional prohibition of the first of these five options empowers the President to effect the last of these options by decree. But there would be three other options; it is appropriate to ask why the President wouldn't instead be required to choose one or more of the other three.

And, if a decision must be made amongst some or all of the four options not prohibitted by section 4 of the Fourteenth Amendment, it is not evident that it is the President's decision to make, even if the Congress will not. In the absence of Constitutional guidance, there is no apparent reason that abdicated legislative responsibility should go to the executive branch as opposed to the judicial branch.

Fourteenth Amendment Redux

Saturday, 9 July 2011

Back in May of 2010, I posted an entry about the Fourteenth Amendment to the US Constitution and the national debt. I'm not sure that readers found that entry particularly interesting at the time, but it gets an ever-increasing number of hits, as the United States approaches default, and as parts of the political left have begun drawing attention to the Amendment. More specifically, parts of the political left have claimed that the Amendment actively requires Congress to increase the debt ceiling, and other parts have claimed that the Amendment empowers the President to increase the debt limit without consent of Congress. It's that latter claim that I will now examine.

Let's return to the actual language of section 4:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

(Underscores mine.) Now, an important phrase here is authorized by law; the question is of how a debt as such comes to be authorized by law.

The Constitution itself is law, superior to any-and-all further legislation. It is the Constitution that creätes the Presidency. Before and after the Fourteenth Amendment, the Constitution does not invest any law-making authority in the Presidency beyond what can be said to exist in ability to negotiate treaties with foreign powers (and these treaties must be ratified by a two-thirds majority of the Senate), and Congress has not delegated to the Presidency the authority to increase the debt ceiling.

So the question truly is of whether and when the Fourteenth Amendment might, as parts of the political left claim, be itself exactly the law that empowers the President to increase the ceiling. And the answer is that it is indeed that law — where the only way not otherwise in violation of the Constitution to pay debt that has come due is to borrow beyond the existing limit. If the debt can be paid in some other way, then no special authority can be found for the President in section 4.

And there is the rub. The President doesn't get to say that he or she must raise the limit to continue funding institutions to which he or she can apply profound and moving terms, unless those institutions are indeed Constitutionally mandated. The political left will find none of its distinguishing programmes amongst these institutions. (And, should they bother to read what's actually there, the political right would find that many things that it regards as essential are not actually required by the Constitution.)

Exercising the Franchise

Tuesday, 4 November 2008

I decided to go to the district polling station before it opened to-day, in the hope of avoiding a line. My thinking was that, while I would be waiting for it to open, I would spend less time in line, for a net savings. In the event, there was already a significant line when I got there, but the line grew dramatically behind me. I might have reälized more savings had I got there five or ten minutes still sooner. On the other hand, there may be times later to-day when the line is much shorter (yet before the polls close).

As per my previous declarations, I did not vote in the Presidential election. I remain persuaded that none of the candidates was adequate to hold so much power. I am convinced that the next President is going to prove a very great fool or a very great knave or quite likely both, and that the next two or more years are just going to be a rolling disaster.

Batten your hatches! Sandbag the whole town!

Saturday, 3 May 2008

28bytes alerts his readers to the fact that 3 May 2008 is the 30th anniversary of the first piece of spam e.mail.

Although — because spam e.mail can cross national borders — there is a limit to what the Federal government might practically and legitimately do about spam e.mail, the Federal government doesn't do what it could. In fact, Federal legislation actively subverted the efforts of some state legislatures to battle spam.

My suggestion is this: On 3 May of every year, send one piece of email, objecting in your own words (however brief) to poor Federal action against spam, to each of the following:

(If one of your Senators is hiding his or her e.mail address, then send e.mail to I don't have a fall-back address for Representatives.)

Encourage each of your acquaintances, friends, and family members who are unhappy about spam e.mail to do the same, and to likewise encourage those whom they know.

This year, there will be very few people sending such objections, but next year there could be substantially more, and the numbers could continue to grow each year.

[Edit (2013:07/17): As part of an SEO programme to get sites to link to, Stuart Hultgren, of, contacted me to let me know of a dead link and of a good replacement.]