What If the V.P. Resigned in the First Two Weeks?

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

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4 Responses

  1. Frank says:

    interesting questions. for more imponderables, check out:


    “Thanks to gaps in election rules, they say, the double assassination of a presidential ticket just before Election Day would create chaos, with voters unsure who they were actually voting for. If terrorists killed the winners just afterward, the Electoral College would be left without any clear directive. Either scenario could lead to a crisis of democratic legitimacy that would make the 2000 Florida recount pale in comparison.”

    Replace “assassination” with “resignation” and I have a sense the same chaos would ensue. Perhaps the only “neutral” solution is to appoint a caretaker, via 25th amendment-type procedures, for a year until there could be a national vote.And perhaps use the 12th Amendment (states voting by delegation to the house) to choose the caretaker.

  2. Howard Wasserman says:

    To Frank’s last paragraph: Current law already provides your “neutral” solution. The Speaker of the House becomes acting president under 3 U.S.C. § 19(although some have raised constitutional concerns with this) on January 20. Alternatively, since most cabinet posts remain filled by secretaries (or at least “acting” secretaries) from the prior administration, they also remain in the statutory line of succession and could become acting president on January 20. Yes, this has extreme partisan and democratic legitimacy problems. And, since there is no provision in federal law for a special presidential election, Pelosi or the former Bush cabinet officer would remain in office for a full four-year term.

    But I suspect that the worst anti-democratic and partisan excesses would be avoided by manipulating the system. So suppose Pelosi must become acting president on January 20. I imagine the following happening: She would nominate a VP from the party that had won the presidential election (presumably with consultation of party leaders), who then would be confirmed by Congress. Pelosi then resigns as acting president (or is pushed out by the new VP’s prior position in the line of succession) and we get a President who at least is from the same political party as the election. Admittedly not ideal and the fact that bad procedures can be manipulated to resolve problems does not replace actually replacing defective procedures.

    One interesting proposal that has been made is to establish a courtesy practice of the outgoing President nominating her successor’s cabinet officers, who can be quickly confirmed by the new Senate. Then, should anything happen to the President and VP prior to January 20, that cabinet officer (who has *some* democratic legitimacy by his selection by the President-elect) can assume the presidency.

  3. birtelcom says:

    I’m not sure I understand how the Secetary of State idea improves over the curent system described in Section 2 of the 25th Amendment. That clause provides that in the case of a Vice-Presidential vacancy, a replacement is nominated by the President subject to majority approval in both houses of Congress. The Secretary of State as successor is subject only to approval by the Senate. So you would be substituting a system of approval by both houses with one of approval by one house. How is that an increase in review and accountability?

  4. A.J. Sutter says:

    I’m confused by the last sentence of Howard’s post: regardless of the approval of any Cabinet officers before the inauguration of the President-elect, aren’t the Speaker and then the President pro tem of the Senate ahead of them in the line of succession? What does early approval of Cabinet officers accomplish, in succession terms?