If VP Becomes Acting President When President Is Temporarily Disabled, What Happens to VP's Tiebreaker Vote?

Looks like it goes away, for however long the VP acts as President.

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The Vice President can break a tie in the Senate, which is especially important when the Senate is split 50-50, as it is now. Say a President gets ill enough that he recognizes that he's becoming temporarily incapacitated (or the Vice-President and the majority of the Cabinet so recognizes, for instance if the incapacitation comes on suddenly). The VP would become Acting President; but would she still be able to cast the tie-breaking vote in the Senate?

The Twenty-Fifth Amendment provides, in relevant part,

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. 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.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. [Details for handling disputes about this omitted. -EV]

And the body of the Constitution provides:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

This suggests that, when the VP "exercise[s] the Office of President of the United States," she doesn't exercise the office of "President of the Senate," and therefore lacks the power to cast her "Vote" in the Senate when the Senators are "equally divided." And the 1985 Office of Legal Counsel opinion agrees:

The Twenty-Fifth Amendment does not require a Vice President to relinquish the office of Vice President when he becomes Acting President because of a temporary Presidential disability; in fact, the Amendment and its legislative history clearly contemplate that the Vice President will continue to serve as Vice President during and subsequent to the Presidential disability. See 1965 House Hearings at 87; S. Rep. No. 1382, 88th Cong., 2d Sess. 11-12 (1964). The Vice President would, however, lose his title as President of the Senate. See 111 Cong. Rec. 3270 (remarks of Sen. Saltonstall); J. Ferrick [likely referring to J.D. Feerick -EV], The Twenty-Fifth Amendment 199 (1965).

Here is the Congressional exchange to which the OLC was referring:

Mr. SALTONSTALL… Under the Constitution, the Vice President is President of the Senate, but if he became Acting President under this amendment, he would no longer be President of the Senate, but the President pro tempore would become the President
of the Senate. Is that correct?

Mr. BAYH. That is correct.

Mr. SALTONSTALL. The Vice President would become Acting President and thereby lose his title as President of the Senate. Is that correct?

Mr. BAYH. That is correct.

Sen. Birch Bayh was apparently the principal author of the Twenty-Fifth Amendment, so his position is likely to carry some weight (not binding, but persuasive). And it seems that he and the OLC were implying that the VP would also lose her tie-breaking vote, since that comes only from her position as President of the Senate. I e-mailed Prof. John Feerick to confirm this, and he agreed.

Now if the President dies or resigns, the Vice-President actually becomes President, and a new Vice-President would then presumably be nominated and confirmed by a majority vote of both Houses (though the Senate being 50-50 might require a good deal of compromise on this score). But if the President is merely temporarily incapacitated, there's no provision for choosing a new temporary Vice-President / Senate tiebreaker. That wouldn't be a serious problem for short incapacities (for instance, when a President is in surgery), but might be for longer ones.

Now I suppose one could argue that the Senate President pro tempore would be able to cast two votes, when the VP is Acting President of the U.S.: One in his capacity as Senator, and one in his capacity as Vice-Vice-President. But apparently that has never been the understanding. (Recall that, before the Twenty-Fifth Amendment, when a President died in office, the VP became President and the office of VP remained vacant; there were many years during which this was so, and apparently there was just no tie-breaker then.) [UPDATE: Seth Barrett Tillman reports that such multiple voting in colonial and state offices did happen in 1700s America; but apparently that didn't end up being adopted as the custom in the U.S. Senate.]

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  1. Wasn’t there a lot of doubt, the first time a President died in office, about whether the VP would become president or would simply exercise the office of the president? Section 1 of the 25th amendment resolves that issue once and for all, but you can see why that might have been on people’s minds…

    1. Biden is a dangerous Taliban appeaser, and a traitor. He has really worked hard in the interests of Iran and of the Chinese Commie Party. He should resign immediately or be impeached immediately.

      1. Good job feminists. You elected Biden. Now, women are in the worst catastrophe of the past 80 years. Twelve year old girls will be removed from 6th grade or get shot in the face. They will be the sex slaves of stinky 60 year old Taliban. They do not even have toilet paper.

        1. Volokh should be praised for finding the analysis that answers this important question. We should proceed with impeachment as soon as possible, now for more than one reason.

          1. Volokh should be praised for having a comment section that generates discussion. In fact, in some cases the same commenter can generate a discussion just by replying to themselves. Such efficiency!

            1. Talking to yourself isn’t a sign of a mental problem, nor even is arguing with yourself. Unless you’re losing the arguments.

      2. “Biden is a dangerous Taliban appeaser, and a traitor. He has really worked hard in the interests of Iran ”

        You seem to have confused Biden with Trump. Trump is the one who told Iran it was OK with us if they wanted to go ahead and restart their nuclear program(s).

    2. Yes, this was an early dispute and the battle lines were pretty crazy.

      When Harrison died, Congress thought Tyler would be the Vice President and have the authority to act as President. Tyler thought this was nonsense and he was just the President. He also didn’t think he had to take an oath of office again, but did to quell any doubts. Tyler won the argument, setting the precedent until the 25th Amendment clarified things a bit.

      Which is actually pretty crazy when you think about it, because logically Tyler should have wanted to remain VP so he could keep his tie-breaking vote, but either he felt strongly about the principle or really wanted the fancier title, take your pick.

      1. The VP only has the power to break ties in the Senate if he (or she) is IN the Senate. If he’s busy with other duties, then the President pro tempore runs the Senate, and ties remain unbroken unless a Senator changes their vote.

  2. Thank you for correctly describing the 25th Amendment. The media have for years conflated it with impeachment, thinking that invoking the amendment would result in a President being removed from office.

    If the 25th Amendment is invoked, Kamala Harris would be Acting President, not President. Biden would still be President, but with no powers. He would eventually get his powers back, if he didn’t vacate office beforehand.

    1. They have? I seem to have missed it.

  3. Now I suppose one could argue that the Senate President pro tempore would be able to cast two votes, when the VP is Acting President of the U.S

    Seems unlikely, as a Senator chosen as President pro tempore is already a member with full voting rights. Can’t be a double member can you ? (Well can you ? eg suppose you’re elected in 2022 for the Class 3 Senate seat for California, can you then get yourself elected for the Class 1 seat for California in 2024 as well ? And then can you exercise two votes ? )

    But it does raise the question as to whether the President pro tempore of the Senate has to be an existing Senator. If it is decided that the 25th Amendment needs to be applied to Joe Biden, then can the Dems elect, say, Barack Obama as President pro tempore of the Senate, with the current VP’s casting vote, before the 25A switch is pulled ?

    And in such a case would the President pro tempore acquire a casting vote, while VP Harris is occupied as Acting President ?

    1. The President pro tempore of the Senate has never cast a tiebreaking vote, even when there’s been no Vice President. Only the President of the Senate can cast the tiebreaking vote. If there’s no President of the Senate (no VP or VP is Acting President), then nobody can cast the tiebreaking vote.

    2. The constitution is pretty clear:

      “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

      It’s the VP as President of the Senate that can cast the tiebreaker, not the Senate President pro tempore.

      But if you did want to argue that the Senate President pro tempore was the President of the Senate, then they would also “have no Vote, unless they be equally divided.” The constitution isn’t a menu where you just pick the items you like.

  4. “The Senate shall choose its president pro tempore in the absence of the Vice President, or when the Vice President is exercising the office of the President.”

    IOW
    The Vice President has to be out of the room when the Senate chooses its officers. But if she is the Acting President, they can choose even with her there (and presumably able to cast a tie breaking vote). And a Vice President acting as President is still the Vice President. Confusing as it is, the provision seems to mean that the VP, as Acting President, still has the powers of the VP, and the only power the VP has is the power to cast the tie breaking deciding vote.

    1. I wish I could tell…

    2. Interesting interpretation but it’s directly contradicted by testimony of the Senator considered the primary author of the very text you’re interpreting.

      Did you bother to read the article before posting? Do you have an actual reason to think that your interpretation is right and Sen Bayh’s interpretation is wrong?

      1. What Bayh said was irrelevant, if the text can be parsed, which it can be.

        I think Bayh did not anticipate the question (nor did any of the drafters) and he was just winging it.

        1. Under this interpretation, when does the president pro-tempore of the Senate preside?

          1. ” when does the president pro-tempore of the Senate preside?”

            When the VP is busy doing actual VP work.

            1. lol. So never?

              1. Cheney ran the whole federal government from the VP’s office.

            2. But then that would mean the President pro tempore “have no Vote, unless they be equally divided.”

              Not have two votes.

        2. “I think Bayh did not anticipate the question (nor did any of the drafters) and he was just winging it.”

          This is the most sane take in this whole thread.

    3. “The Vice President has to be out of the room when the Senate chooses its officers.”

      LOL That’s not what the quoted sentence means. It means that they choose a pro tem to act when the VP is absent.

      1. Right. Which means the president pro tempore becomes the president of the Senate if Harris is the acting president. But, does she get a tie-breaking vote if she is also a sitting senator?

        1. The President Pro Tempore is not President of the Senate, and doesn’t become President in the absence of the Vice President. So no tie-breaking vote

          1. By definition of pro tempore, they are the president for the time being. And what time being? Per the plain text of the Article I, “in the absence of the Vice President, or when the Vice President is exercising the office of the President.”

    4. ” the only power the VP has is the power to cast the tie breaking deciding vote.”

      The VP has actual duties, representing the US overseas at events not quite important enough to draw the Prez, and hosting foreign dignitaries likewise not quite important enough to get the actual Prez. Plus, of course, such duties as the Prez may assign, such as locating weapons of mass destruction.

    5. “The Vice President has to be out of the room when the Senate chooses its officers”
      That was only the custom, not the law.

      https://crsreports.congress.gov/product/pdf/RL/RL30960

  5. So, as you know, if Biden were actually removed from the Presidency, and Harris became President, prior to the half-way point of this term, Harris would only be eligible to be elected to one term as President herself. If it were after the half-way point, she’d be eligible for two terms.

    But, how does this work with the 25th amendment? Can Harris get almost a full term as acting President, with Biden not actually resigning, and still serve two full terms?

    1. “. . . with Biden not actually resigning. . . . ”

      I think you answered your own question.

      There’s only one President at a time.

      1. So, it could be used as a work-around for somebody to get 3 terms. Possibly more, if you were VP for a succession of people willing to step aside.

        Well, I’m not alien to the idea that the Constitution fails to safeguard against all evils. But I wonder what the Court’s take on that would be.

        1. The 22nd amendment talks about a person who has “acted as President”. Which covers any exercise of the office under any heading, I’d say.

          1. So Alec Baldwin has already used half his allotment, then?

            1. …and Martin Sheen is disqualified?

            2. I swear you did Harrison Ford dirty.

              1. How many seasons did Mr. Ford act in the role of President?

          2. Yep- refers to acting as President of being President.

    2. Why just one term as acting President?

      1. More than one term as acting President would require Joe to be reelected while incapacitated, or a new sucker willing to run as the figurehead and step aside.

        1. Being disqualified from serving as President is also disqualification from being elected Vice, isn’t it? So the run, win, and step aside won’t work unless you can put Harris into a role that has no disqualification, but is in the chain of succession.

          1. Being disqualified from serving as President is also disqualification from being elected Vice, isn’t it?

            Says who ?

            1. Says the 12th amendment. “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

          2. Twice I’ve seen this “run then step aside” stuff. That should be fixed by amendment, unless they admit that is their goal.

            The problem is it only has meaning in a context of not revealing it.

            And lying to accomplish their goal is the high point of a politician’s career.

            Poor Hal 9000. He was told to lie, by people for whom lying is second nature.

            1. “Twice I’ve seen this ‘run then step aside’ stuff.”

              It’s a popular fantasy among the sorts of people who build their conspiracy theories on as few facts as possible.

              Biden didn’t win in 2020 because he was Biden. He won because he was NOT Trump. As, in turn, Trump won in 2016 because he was NOT Hillary. Sometimes you win because you inspire your supporters and get them to show up for you. Sometimes you win because the other guy is such an unpopular buffoon that this is all it takes. At the state level, In Oregon in 1996, John Kitzhaber won the governor’s race because he had more-or-less successfully run the state’s bureaucracy for two previous terms. But also because the R’s nominated possibly the most unpopular political figure who ever stood on Oregon soil.

    3. “Can Harris get almost a full term as acting President, with Biden not actually resigning, and still serve two full terms?”

      Yes.

      Except for the fact its Harris.

      1. All zero of her 2020 Democratic delegates can tell you about her electoral chances.

        1. I don’t know if you know this, but they don’t carry over, and start over each election.

    4. The 22nd Amendment says if someone serves as President or Acting President for more than half of someone else’s term as President, that person can be elected President only once. So if Harris possessed the Presidential powers for more than two years, then only one time could she be elected President.

      1. Thanks, I hadn’t checked the exact wording. Guess she’s out of luck on that third term.

    5. Remember when people said that Dan Quayle was George Bush’s insurance policy because he was too incompetent to be President? And same for Biden when Obama was President.

      Biden followed the same formula for picking his VP, as incompetent and senile Biden is, Kamala Harris would be worse.

      But at least there wouldn’t be Democratic control in the Senate, and there will be a GOP house in 16 months.

      1. ” there will be a GOP house in 16 months ”

        Don’t count your bigots before they’re hatched.

        Unless you guys actually have perfected a machine that mass-produces poorly educated, superstitious, round bigoted, easily frightened, economically inadequate, rural, southern, older White males . . . although you’d still need the Conspirators and other Republican lawyers to figure a way to register all of the newly minted clingers to vote.

      2. You had the opposite effect in 2016. Trump was incompetent, but kicking him aside would have installed Pence. The only thing the D’s would like less than an incompetent buffoon as President is a competent Republican.
        Trump didn’t use the power of the Presidency to do any long-term damage to the US*, all he thought of being President was having more ice cream served to him at dinner than to anyone else.

        * that we know of, yet. Withdrawing from the Iran deal and/or the Paris accords may yet cause us severe tribulation. But he didn’t start any wars, and diplomatic oopsies like pushing other world leaders aside because there was a TV camera he wasn’t in front of could be smoothed over by the professional diplomats.

    6. “if Biden were actually removed from the Presidency”
      Barring death of obviously permanent incapacity (a vegatative condition), removal seems extremely unlikely

  6. Say a President gets ill enough that he recognizes that he’s becoming temporarily incapacitated

    Just say, for example, COMPLETELY hypothetically…. 😂

    1. Right. Completely hypothetically; if Trump had had the ability or capacity to recognize that his delusion and derangement rose to the level of (temporary?) incapacity . . .

      Lots of people wondered about this. Lots of Republican politicians wondered about this. (Almost always, off-the-record, alas.)

      It is a fun and frustrating intellectual exercise. Glad you brought it up again…what would have happened in this alternate timeline, if President ____ had done X instead of Y?

      1. Meh. Someone not saying what you want them to say in the way you want them to say it is worlds apart from someone losing the ability to form words, think on their feet, and generally function.

        I understand the compulsive need to try to normalize Biden against Trump, but to try to pull that off here you find yourself increasingly having to line up Trump’s worst moments with Biden’s day-to-day ones — on the days he even pops his head out at all.

        1. Meh. Someone not saying what you want them to say in the way you want them to say it is worlds apart from someone losing the ability to form words, think on their feet, and generally function.

          Agreed. You just have the identities of the people who fit those descriptions backwards.

          1. Yeah, you’ve never been one to let facts get in the way of a clever-sounding point. Please return to your regularly scheduled fantasy world.

            1. Don’t you hate it when you try to float some bullshit, and the first person who comes along points out your bullshit?

              1. I can understand how you would know that feeling well.

                1. I can empathize with you, that’s how.

      2. If you know that you’re too crazy to be president, you’re not too crazy to be president.

        1. How about if you SHOW that you’re too crazy to be President?

      3. “Lots of people wondered about this. Lots of Republican politicians wondered about this. (Almost always, off-the-record, alas.)”

        Someone with some pull managed to get Trump actually tested. Man, woman, camera… plus a round of picking out which animal shapes went with which names of animals. Big deal. 3-year-olds can manage that.

  7. Here is the best part of the 25th, and nobody will say it out loud:
    ” . . . or of such other body as Congress may by law provide . . . “.

    Nancy and Chuckles can jam through a party line vote to make the DNC the “other body” that determines presidential competency.
    Think about that for a minute.

    1. Actually been proposed, last year.

      Talk was that they knew at the time that Biden was just a place-keeper, and wanted to take away his leverage for holding onto the office.

      1. Funny, Brett, I don’t see a mention of the DNC at your link.

        “Talk was….” Who exactly was talking this BS?

        1. I wasn’t talking about doing it with the DNC as the designated body, Bernard. Just taking it away from the cabinet.

          They were actually proposing to give that authority to a commission appointed by the Congressional leadership.

          1. Nancy’s answers were so disingenuous that one could puke.

            1. None of those direct, honest answers we are accustomed to from our politicians?

              1. Exactly, bernard.

            2. Twas a day ending with ‘y,’ was it?

          2. Brett,

            You’re scuttling away from your own statement, as you always do when you get called.

            Ltbf said,

            Nancy and Chuckles can jam through a party line vote to make the DNC the “other body” that determines presidential competency.

            To which you responded:
            Actually been proposed, last year.

            Sure sounds to me like you were saying the DNC business had been proposed. Now, to be honest, I expected your link to go to some random Democrat somewhere who “proposed” that half-jokingly.

            But I think your meaning was clear.

            1. You think if I was going to misrepresent things, I’d have provided a link?

              1. “You think if I was going to misrepresent things, I’d have provided a link?”

                Absolutely you would, if you thought it would work. And if anybody called you on it, you’d accuse them of bad faith.

            2. “Ltbf said,”

              Ltbf also said,

              “Here is the best part of the 25th, and nobody will say it out loud:
              ‘ . . . or of such other body as Congress may by law provide . . . ‘.”

              Seems pretty clear Brett was responding to that portion of the comment.

              1. It also seems pretty clear that Brett was responding with bullshit.

                1. But then again, you call truth bullshit and bullshit truth.

                  1. That’s YOUR thing. You can keep it.

      2. “Talk was that they knew at the time that Biden was just a place-keeper, and wanted to take away his leverage for holding onto the office.”

        Ah, yes, the “people are saying…” trial balloon.

        1. Candidate Trump and President Trump was a master at this technique. “Is Jeb Bush on drugs? [Shrugs shoulders] Maybe yes and maybe no.” “Some people are saying that Hillary peddles child porn out of pizza restaurants. Is this true?” [Shrugs shoulders.]

          As linguistic constructs go; it’s a pretty good one. I think it lets a politician say ANYTHING, as long as he or she has at least one source for it. (And, with the internet, I’ll bet I can find at least one source for just about any batshit crazy proposition.)

          1. The guy in the Oval Office before the spray-tanned loudmouth was known for this technique, and the current schmuck, when he isn’t simply bragging or dodging responsibility, uses it as well. There is no need to try to lay it solely at comb-over Caligula’s feet.

            1. “The guy in the Oval Office before the spray-tanned loudmouth was known for this technique”

              With the spray-tanned loud-mouth, you could never really be sure if he was just floating a trial balloon, or if he actually couldn’t remember where he heard something that he desperately hoped would turn out to be true. Exception: If he was making it up, then somebody made sure to call him “sir”

              1. Hank,
                I don’t remember Obama doing it (or, at least, doing it on a daily or weekly basis). But it’s totally possible that I just missed it. (Obama’s stammering annoyed me so much that it probably used up all my “things to be annoyed about” bandwidth during his time in office.)

                It’s my impression that Trump used this technique A LOT. Way more than any other Republican I’ve ever heard. Way more than any other Democrat. Also; I have listened to Biden many times, and it does not seem to be a technique he relies on that much. Is your impression different?

      3. Notice that Pelosi was using her mask inappropriately only as a virtue signal

        1. Are you voicing surprise, Don Nico? Pelosi has a history of disdain for rules she expects the serfs to follow.

          1. No surprise Hank. I was just pointing out another of her hypocrisies.

      4. Brett,
        Was Raskin’s proposal actually passed by both Houses and signed into law?

    2. I’m really not convinced Ds actually want Harris to be Prez. All the polling data I’ve seen strongly suggests that would take the prospect of a R president in ’24 from highly likely to a virtual certainty.

      I do take the point that at the current apparent trajectory of Biden’s capacity, they may end up with no practical choice.

      1. I think they’d be happy to have Harris for President, (By ‘they’, I mean the powers that be, not the party electorate.) but not so enthusiastic about her having to run as their nominee.

        But if they didn’t anticipate a high probability of her being the presumptive nominee in 2024 when she got picked as VP, they’re greater idiots than I find plausible. It never looked like a great bet that Biden would serve out a full 4 years if elected.

        But, if they can ram through some of their election ‘reform’ bills in time, might not matter how popular she is.

        1. Harris was always a weird choice. Incredibly unpopular even among Dems and I don’t get what demographic she was bringing to the table other than a super cynical woman of color vote. But there were lots of options there so why Harris. I guess once they locked themselves into woman of color only they were stuck with some incredibly bad front runners like Stacy Adams so they decided to stick with the one that looked kind of sane.

          But it’s so obvious that she will likely end up President at some point I keep thinking I’m missing something about why she’d get chosen as VP as on the surface she’s just an incredibly bad candidate for basically every group.

          1. I don’t get what demographic she was bringing to the table other than a super cynical woman of color vote.

            Why do Democrats ever nominate former prosecutors? Because they think it’s still the 1990s and there’s any universe in which a substantial number of Trumpists might vote for a black person.

            1. Well, of course there’s a universe in which a substantial number of Trumpists would vote for a black person. Even a black woman.

              She’d just have to be a conservative black woman.

              1. OK, you’re right, there’s a *fictional* universe where that could happen. It just wouldn’t happen in the actual universe that we actually live in. There’s a universe where Candace Owens gets elected president in 2024 in the same way that there’s a universe where a man from Krypton flies through the sky to save the day.

                1. Nah. The guy from Krypton violates numerous laws of physics. Candace Owens being elected President is merely unlikely.

                  I could see her being the VP nominee in 2024, though. DeSantis/Owens 2024. Maybe I’ll get a bumper sticker printed for my car.

                  1. ” The guy from Krypton violates numerous laws of physics.”

                    He’s bound by comic-book physics, not real-world physics. The movies did mess a bit with some of that though. Here’s a question: The Kryptonians had access to space-flight. Did none of them travel to yellow-sun worlds before the end of Krypton?

                    Another plot hole. Kal-El discovers that he can travel both forward and backward through time. How come he never has the idea to travel back through time, and warn the people of Krypton of the coming catastrophe? He could have saved a whole planet’s worth of people. OK, so some of them might have been more like Zod that like himself… he doesn’t have to lead them to Earth. Just get them off Krypton.

                    1. Time travel is bound by the rules of Quantum Leap, where Dr. Sam Beckett could only go back as far as the start of his lifetime.

                    2. Time travel relied on his yellow-sun powers, so it couldn’t have been used on Krypton. And didn’t Jor-El tell Superman (through the crystals) that he’d have powers given by Earth’s yellow sun? So they were obviously aware of it.

                    3. In the comics, the Kryptonians were well aware that life away from Krypton gave them super powers. They were xenophobes, and were deliberately not colonizing away from Krypton. The news about their planet blowing up became undeniable too late for that to be reconsidered.

                      Later in the series they expanded on that theme.

                    4. “Time travel is bound by the rules of Quantum Leap, where Dr. Sam Beckett could only go back as far as the start of his lifetime.”

                      It is if you’re talking about Quantum Leap. I didn’t watch that particular show. I have, however, coincidentally, seen two movies recently that feature time travel: Tenet and The Tomorrow War. The first had strong action but dense plotting that made it hard to follow the logic of the time travel. The latter I liked, even as I had some trouble making the suspension of disbelief at the central conceit. (spoiler alert: What happens is that in the future, the planet Earth is being overrun by an invasive species, so they build time machines to send soldiers into the future to fight the aliens. That part was OK, but the part where they drafted people to go into the future to fight the aliens rather than just starting to build fortifications against them in present-day didn’t work for me.) In other mass-market time travel stories, you have Terminators, Endgames, and comic-book time-travel in the DC Berlanti-verse on the WB.
                      Looping back around to comics, where I started, you have both the Flash and Superman able to time-travel because they can go really, really fast, which is nonsense but established comics-physics. Over in the other brand of comics. the Fantastic Four had access to a time machine and so did an early Avengers foe, Kang the Conqueror.

                    5. “Time travel relied on his yellow-sun powers, so it couldn’t have been used on Krypton.”

                      Superboy gets back and forth to the 30th century. Because his body stores the yellow-sun energy like a battery.
                      There’s a story where one of Superman’s enemies (probably Lex, but I can’t remember for sure if it’s Lex) tricks him into chasing him into the future… far enough into the future that the Sun is no longer a yellow star.

                2. I see you’ve moved from “vote for” to “elect.” The second is unlikely but the former is not.

                  Curious whether you’ve ever met any Trump supporters? I know a couple and they’d easily vote for a conservative black person.

                3. Your racist fantasy world is rich, one comprehends, but the ties to reality are nil. There are plenty of racists, but I think you may want to examine your in-group a bit more closely before making assumptions about groups you to whom have minimal exposure. Your comment here alone is telling.

                  1. I live in the South, and finding racists isn’t that hard to do, nor is it hard to find Trumpster-divers. Often in the same pickup truck.

                    1. I live in the South, to. In a pleasant multi-racial neighborhood, and I see interracial couples everywhere, and nobody’s giving them grief.

                      I’ve no doubt there are pockets of racism here in the South, but my own experience suggests that Michigan was more racist than South Carolina.

                    2. “I live in the South, to. In a pleasant multi-racial neighborhood”

                      You live in Virginia, where they had to be forced to allow multi-racial marriages. Way back in 1967. Y’all got over that one, already?

                    3. Yeah, you see a racist every day when you look in the mirror.

                    4. Only if you’re standing behind me.

            2. and there’s any universe in which a substantial number of Trumpists might vote for a black person

              How did John James get 48% of the vote in Michigan, and Tim Scott get over 60% of the vote in South Carolina, without attracting any Trumpists ?

            3. Tim Scott would certainly get the Trumpist vote if he is the nominee in 2024, Herschel Walker is Trump’s pick for the Senate in Georgia, and Trumpist Larry Elder will likely become Governor of California if Newsome is recalled.

              1. “Herschel Walker is Trump’s pick for the Senate in Georgia”

                Trump’s got a losing streak in Georgia. He cost the GOP control of the Senate last year.
                Well, that and the guy who had a chance of knocking off an R Senator in NC turning up with a relationship to a woman who isn’t his wife. Turns out you can only do that and get Republican votes if you are claiming to be a Republican at the time. Otherwise, it’s disqualifying.

                1. “Herschel Walker is Trump’s pick for the Senate in Georgia”

                  And he’s so dedicated to the opportunity that he even bothered to register to vote.

          2. Basically. She doesn’t seem to excite anyone and seemed to be picked more for what she is than what she stands for.

            I think she’s an anchor around the Dem party come 2024 because she certainly hasn’t excited anyone since becoming VP.

            1. My goodness, did you just outline one of the tenets of left-leaning sociopolitical thought? That people are viewed not for what they stand for, or believe (I will extrapolate, my apologies) but for what they ‘are,’ for the color of their skin and their genitalia. Once upon a time, in a far off land that dreamed of peace, thoughts this foul were considered racism and sexism, not righteousness or justice.

              1. The political parties of modern-day are less about what people stand-for or what they believe than they are about NOT being the oher party, though of course they’ll say otherwise (and quite loudly). Quick “family values” voters, would you rather have a guy who went to the same church for 20 years, happily married, or a guy who doesn’t go to church at all, who’s been divorced a couple of times who is known for frequent extramarital affairs? Or perhaps you’d like to split the difference with choice C, still married to his first wife despite chasing a little side action? 2/3 of these guys are flatly unacceptable to evangelical Republicans.

                1. j/k. I know the guy you really want is the one who was divorced, but still married to the second wife, estranged from at least one of the kids, and definitely suffering from dementia.

            2. “Basically. She doesn’t seem to excite anyone”

              Biden didn’t excite anyone. That was kind of the point. After 4 years of the Oompa-Loompa, we didn’t need more excitement. We needed an adult to be President. We have that now.

              1. You keep telling yourself that your dementia patient can still function as an adult.

                1. How about if, instead, I keep telling you that our President only shows signs of dementia to people who desperately want to believe he has dementia?

          3. “Harris was always a weird choice.”

            Overall, black people and gyno-Americans both lean Democratic, so adding a black woman to the ticket seems to be catering to votes they would already otherwise have expected to get. On the other hand, making sure would give them some comfort and certainty heading into a hotly-contested election. The D’s only win elections when they actually get ALL the people who lean their way to show up at the polls. They have a lot of people who lean their way, who are apathetic about making the trip down to the polling places. The R’s can generally be counted upon to show up and vote, which is how they can win elections despite being a minority and insisting on putting up poor candidates.

        2. But, if they can ram through some of their election ‘reform’ bills in time, might not matter how popular she is.

          Might not. But per the very theme of this post, there shouldn’t be a lot of ramming going on once she’s elevated — and it likely gets even worse in 2022.

          And query how much political will there is to get big-ticket stuff through even at this point, since the message is increasingly devolving into “don’t pay attention to how badly we’re screwing up with the money we’ve already agreed to spend — we pinky swear we won’t do that if you give us boatloads more!” Most notably of late, they may have misplayed their hand a touch trying so hard to tee up the 20th anniversary Afghanistan celebration.

          1. The political will to pass big ticket stuff is actually increasing; They desperately hope to, ideally, buy their way out of a 2022 defeat, and worst case, make policy changes that will be irreversibly entrenched by the time they’ve lost the White House, too.

            1. It will be tougher for them in 2022, because they won’t be able to run on a “tell Trump he’s fired!” campaign. But the Republicans seem determined to make sure everybody gets coronavirus, so they’ll have that.

              1. But the Republicans seem determined to make sure everybody gets coronavirus, so they’ll have that.

                I guess you mean determined to depart the King Canute, “we’re gonna CRUSH this virus!” fantasy land the Ds are living in and rejoin the real world. Look up “endemic” and get back with us.

                1. “I guess you mean […]”

                  You guessed poorly.
                  I mean they seem highly determined that everybody should get the damn virus at least once. Because if they all say “it’s not really that big a deal” together with complete sincerity, then the wish will come true. Or something like that.
                  Kids can’t get vaccinated yet. Let’s gather them all up together, and make sure none of them is wearing a mask, appears to be their policy approach.

              2. If everybody gets it, the problem is done, right? No more excuses for lockdowns or face diapers. No Australian style concentration camps. We just move on with our lives.

                This ain’t the Spanish flu, James. It’s not a world ending plague. We could have simply ignored it, and society would have survived.

                I don’t think we SHOULD have ignored it, but we shouldn’t have treated it like the zombie apocalypse, either. We’ve enormously over-reacted to it, perhaps out of an initial worry that it really was a biowarfare agent, and then it became politically impossible to back off, a moral panic set in, politicians started seeing it as a great excuse to become dictators.

                In 2022, the real campaign issue may be the Democrats refusal to let society go back to normal.

                1. “If everybody gets it, the problem is done, right? […]We just move on with our lives.”

                  The dead people probably will not just move on with their lives. That’s how death works.

                  1. Worked that way with every disease in history. Five of the ten flu seasons in the previous decade killed more under-18s than the ‘rona has, but keep on about that virus that’s so deadly that 99.7% survive.

                    1. I’m sure we’ll miss you when you turn out to be one of the .3%

      2. “I do take the point that at the current apparent trajectory of Biden’s capacity, they may end up with no practical choice.”

        Trump passed the cognitive-capacity tests, so the D’s probably aren’t worried too much about Biden passing. Man, woman, camera…

        1. Well then he should take the cognitive tests and release the results to remove all doubt.

          1. He should take cognitive tests because his supporters don’t think he needs cognitive testing?

            Uh, maybe YOU’RE the one who needs cognitive testing.

          2. Didn’t he claim he took cognitive tests before, and lied? One assumes he will do the same.

            1. Lied? Come now — Dear Leader is the smartest president ever. FDR, Reagan, and Lincoln all rolled into one. All else is 8chan-grade, seditious disinformation. Oh, and please hold for the FBI.

              1. Der Trumpfenfuhrer actually took the cognitive tests, and claimed they were very difficult.

  8. I am picturing the shit show of the dems pushing legislation through the senate on a 50/50 vote with Harris both casting the tie breaking vote and signing the legislation.

    I would hope there would be some push back beyond simply relying upon the text of the 25th amendment to save us.

    1. I think they’d be more likely to pull off the other shit show, where they hold the vote at 3am in a practically empty chamber, instead.

      1. Or, heck, just record in the Congressional Record that they had, and challenge anybody to prove them wrong. Less chance of somebody not interested in cooperating wandering in at the last moment.

      2. Isn’t that how the TCJA was passed?

        1. Nope, all the votes on that were roll call votes.

          I’ve seen procedural motions on controversial bills passed with that tactic, but last week was the first attempt I’m aware of to try to actually PASS a controversial bill by a late night no-quorum voice vote.

    2. Can’t happen. Harris cannot act as VP and as Acting President at the same time.

      1. At least, not without a lot of help from the cabinet.

        1. No James, not all all even with the help of cabinet cronies

          1. Sure, and Trump couldn’t funnel money to build his invisible wall, either.

  9. “[Details for handling disputes about this omitted. -EV]”

    TL;DR version – it goes to Congress.

    By the way, is there any particular reason we’re discussing Presidential disability right now?

    1. Other than the current President not being able to string together more than 10 minutes of rehearsed lines during the biggest crisis of his administration after disappearing for 3 days while he appears to have been in contact with absolutely no one, for some reason that no one will explain.

      1. There should have been a question mark at the end of that.

        But is it really not obvious from him disappearing during this cris, and then even Democrats and international allies openly discussing his mental capacity, that this is a relevant concern among everyone right now, not just something Republicans were bringing up during the election?

      2. Other than the current President not being able to string together more than 10 minutes of rehearsed lines during the biggest crisis of his administration after disappearing for 3 days while he appears to have been in contact with absolutely no one, for some reason that no one will explain.

        If the US could (more or less) survive four years of Trump, clearly the ability to string together coherent sentences isn’t much of a job requirement.

        1. Stellar example of whataboutism ya got there, probably not going to sway many minds.

          Right up there with, “he hit me first” when you’ve just punched a 12 year old with Downs syndrome…

          1. Pretty stupid example of ‘whataboutism’, when Trump is routinely speaking extemporaneously to crowds for over an hour at a time.

            1. There’s speaking, and there’s speaking well. One of those is something Donald Trump can do for hours, and the other is somethin he can’t do at all.

              1. You can’t expect him to say things Democrats like. But he does manage to say stuff people find comprehensible, off the cuff, for extended periods.

                1. ” he does manage to say stuff people find comprehensible, off the cuff, for extended periods.”

                  Meh. People project what they wanted to hear over the top of what he actually said, and then they cheer for it.

                  They wanted a big, beautiful wall paid for by somebody else so badly that they chose to focus on that part of what he said, and ignore it when it said it would be invisible and have magical powers.

            2. I didn’t say Trump couldn’t talk. I said he couldn’t talk coherently.

              1. Him no talk good?

        2. Right. Amazing how these cultists who worship a man who claimed he was a genius because he could remember five words in a row are now convinced, based on nothing but their own fantasies, that Biden somehow has dementia.

          1. “based on nothing ”

            Plenty of video on Biden showing confusion, mental stumbles and constant mispronunciation, Baghdad Bernard.

            Circumstantial evidence is how much they keep him away from the press. Since the crisis in Kabul, one friendly sit down and a few pre-selected questions yesterday.

            I’d say his oft displayed anger is an additional sign but Biden has always been a thin skin jerk.

            He’s 79, having dementia is not rare.

            1. It’s amusing watching all the “Biden has dementia” talk coming from the “but Trump’s a genius!” folks.

              1. Who you talking about? Not me.

                Trump is cunning, not intellectual at all.

                1. “Trump is cunning, not intellectual at all.”

                  Coincidentally, W wasn’t either, or St. Ronnie. Bush Sr. WAS, but did his best to hide it.

                  And St. Ronnie unambiguously DID have dementia. Not second-term Woody Wilson-level, but also not operating at 100%.

                  1. Late in his second term, sure. Not at the start of his first, as some Democrats like to claim.

                    Seriously, we desperately need an upper limit on Presidential age, to go with the lower limit. We’re turning into a gerontocracy. Maybe 35-65, or something like that.

                    And, no, I don’t think Trump should run in 2024, for that very reason.

                    1. So, when he was making deals with terrorists, he was in his full, right mind?

              2. I don’t think Trump is a genius; I didn’t vote for him, twice, and I don’t even like him. My personal rule is that I never vote for a shameless liar, which disqualified Trump, Biden, and H. Clinton.

                That said, anyone denying that Biden’s not all there any more is just being a partisan hack, where denying the obvious is a reflex.

          2. “Amazing how these cultists who worship a man who claimed he was a genius because he could remember five words in a row are now convinced, based on nothing but their own fantasies, that Biden somehow has dementia.”

            Given his statements on Afghanistan, he’s either lying at Trump levels or he’s unaware of the basic facts of the situation. And I’m not convinced he’s lying.

            1. “Given his statements on Afghanistan, he’s either lying at Trump levels or he’s unaware of the basic facts of the situation.”

              And the reason you’re so sure you have the better grasp of what’s happening in Afghanistan is because…

        3. ‘But Trump’ isn’t much of an answer to the current problem. Trump created a host of issues, yes. This is on an entirely different scale, and this is not about the US alone. If you cannot see this, then you may want to examine your biases.

          1. “‘But Trump’ isn’t much of an answer to the current problem.”

            Agreed. But pretending der Trumpfenfuhrer didn’t contribute is even less helpful. The current outcome has been more-or-less pre-ordained since we failed to catch up to bin Laden during the first W term. bin Laden was the reason we put boot one on the ground in Afghanistan, and not bringing back his head posed a threat to the re-election of the Cheney administration. So, presto-change-o, suddenly we didn’t give a damn about Afghanistan, Saddam was the REAL problem (because they knew where to find him.) So we started a new war, and lost interest in the old one.
            The neocons didn’t learn the lesson from WWII Germany, who lost the war because they didn’t finish with Britain before they went chasing off into Russia.

            1. “The neocons didn’t learn the lesson”

              Which Neocon was that? Obama?

              If I recall correctly it was Obama who said that Afghanistan was the real priority, and abandoned Iraq to focus on Afghanistan. That was at least 10 years ago. This was as much his failure as Bush’s because he re-emphasized the commitment.

              1. “Which Neocon was that? Obama?”

                Yes, obviously, it’s Obama who’s leading the charge of anti-Bidenism.

              2. Hint: Obama wasn’t even a Senator during W’s first term, and certainly wasn’t setting military policy back then.

      3. “Other than the current President not being able to string together more than 10 minutes of rehearsed lines during the biggest crisis of his administration after disappearing for 3 days while he appears to have been in contact with absolutely no one, for some reason that no one will explain.”

        The bigger problem is that the 10 minutes of rehearsed lines said things that were different than what the Defense Department, the Department of State, our allies, and reporters on the ground in Kabul were saying.

    2. “is there any particular reason we’re discussing Presidential disability right now?”

      Other than conservatives of the present day being extremely prone to wishful thinking, not really.

      1. Well Tony Blair just called Biden an imbecile, so its not just conservatives.

        1. OK, so it’s conservatives prone to wishful thinking, and bitter foreigners with their own issues.

    3. ” By the way, is there any particular reason we’re discussing Presidential disability right now? ”

      Lathering the rubes
      Lathering the rubes
      A right-wing law professor
      Lathering his rubes

  10. Keep the dream alive, prof. Keep the dream alive…

    1. What’s so great about a dream about clutching at straws?

  11. Honesty and ethics would dictate that the VP could not both vote in the Senate and sign the legislation, but we live in a world where every action is litigated, and the court can be pressured to act in favor of the majority. Hence the finding that the CDC has magical powers to prevent evictions or that we can endlessly keep borrowing and printing money for excessive government spending. I fully expect democrats will try anything and everything with what limited time they have remaining until the next election.

    1. You sound like you’re expect another Big Red Wave, buckleup.

      Probably just as much as you expect the Rapture . . . with the same, and quite predictable, results.

      1. All those eggs are sure to hatch into chickens. What’s the harm in counting them now?

      2. “You sound like you’re expect another Big Red Wave, buckleup.”

        Won’t need one, once all the re-instatements start kicking in.

  12. Interesting question, but primarily academic. While the Senate is occasionally split 50-50 that situation typically resolves itself in the next election with one party gaining firmer control. So the most time the situation could occur is for two years, assuming the President was incapacitated also immediately after being sworn in and never fully recovering. It is an interesting question for the Senate in terms of power in the body. What happens to leadership roles in a 50-50 Senate with no tie breaker. Much of the legislation is now held up by filibuster, but what about leadership. Do the committee chairperson and the ranking member become co-chairs? Is there a minority party or co-majority parties and it that exists who control what get to the floor?

    1. The situation can occur no matter the composition of the Senate. It’s much more important with an equally divided Senate, however.

      1. Its most important in a divided Senate at the beginning of the sessions when establishing leadership positions. M4E is asking what would happen if the president becomes incapacitated, and the office of Vice President becomes vacant (or effectively vacant) before leadership positions are established

        I suppose the expectation is the Senate would work it out amongst themselves. Just because the Senate is evenly divided wouldn’t mean all leadership votes have to follow party lines, a compromise leader could be selected to preside, and elected by both parties

        Failing that rules could be amended to create a co-chair situation, or a rotation. Basically as long as you can get 51 Senators to vote for it, it could be made to happen

      2. Patrick Leahy would remain President pro tem and with the majority leader would decide what gets to the floor. However, As the vote would be block if all Rs vote in unison a different power-sharing agreement would be likely

    2. “What happens to leadership roles in a 50-50 Senate with no tie breaker.”

      Not that complicated. Every committee has an even number of members equally split between parties, and each with a co-chair of each party. Most likely, you get a President pro tempore who has the most seniority in the chamber.
      In a huge shift from the way it runs now, approximately 0% of the legislation that has any meaning gets passed; national apple pie day will still be proclaimed but nothing more important than that that anyone actually cares about.

  13. Generally the two parties share committee roles through some kind of agreement. I agree with Eugene that there’s no tie-breaking vote.

  14. This all sounds correct. Would this be the winning sequence for Harris:
    1 preside over a Senate vote to elect a Republican president pro tem
    2 invoke the 25th and become acting president
    3 now Democrats win Senate votes 50 to 49

    1. That would be really clever if Senators who get elected president pro tem didn’t retain their vote. But they do.

        1. There’s a sentence that doesn’t happen very often.

    2. Don’t get number 3.

      The President pro tempore is currentlt Senator Leahy of Vermont. He exercises his normal Senatorial vote all the time. Why would a Republican President pro tempore not do just the same ?

      Anyway the easiest way to get a winning sequence (for the Ds) is :

      1. Biden resigns
      2. Harris takes over as President
      3. The new President Harris nominates a “centrist” Republican Senator as VP…..
      4….who comes from a State with a Democrat Governor, who can make a temporary appointment of a replacement Senator

      Obvious candidates – Susan Collins of Maine and Richard Burr of North Carolina. Collins is a bit kooky and might prefer staying as a Senator, but Burr is retiring in 2022 and might like Vice President on his tombstone.

      According to Balletopedia, North Carolina requires the Governor to appoint a replacement Senator of the same party as the person being replaced, but practically, finding a registered Republican who will vote reliably Democrat in the Senate should not be too hard. If necessary a reliable Democrat can switch parties.

      1. The legislature of NC would find a way to weigh in, and they are not friendly to their governor.

        1. I don’t think the NC GOP any longer has a veto overriding majority.

          1. I admit not paying attention despite actually living in NC for the last two years. But I remember that when the current governor was first elected, the legislature coincidentally decided to reassign a number of powers from the governor to the legislature.

      2. You might have better luck getting another Vice President Burr before so many people saw Hamilton. 😉

      3. Maybe that explains why her office hasn’t been hounding me for my advice.

      4. They can’t make a Republican Senator VP against their will. They would have to resign their position as Senator to become VP.

        1. That’s why Lee is proposing they pick a Republican who’d be glad to screw over their party by giving the Democrats a working majority.

          1. Yeah, but what’s the upside? Going from a powerful job where you are one of the swing votes and everyone is waiting to see what you are going to do, or go to a job where you will immediately be sidelined, in fact they are giving you the job so your vote won’t matter anymore.

            Now the only GOP senator that would make any sense for is Lisa Murkowski, but alas the governor of Alaska is Republican.

            1. The upside is screwing over your nominal party, obviously. Several current Senators facing forced retirement by their voters might be up for that.

              1. there have been cases of politicians jumping parties after the election. Usually, it’s a desperation move to remain relevant, and usually impresses nobody.

          2. He can do that more easily by switching parties like Arlen Specter did and negotiate for a good price and real power

      5. “President Harris nominates a “centrist” Republican Senator as VP…..”

        Talk about a fantasy. Putting a GOPer next in line would over like a lead balloon with the party.

        Plus, even Collins is to the right of every Dem senator.

        1. The challenge would be finding a “centrist” Republican unicorn.

  15. Is the switchover point when the VP being elevated to President steps up, or can the VP being elevated still fulfill duties of the VP until such time as the VP-being-appointed gets confirmed? That would make a difference for breaking ties in the confirmation vote.

    Is the President-being-disqualified eligible to be appointed VP?

    1. If the President vacates office (i.e., dies, resigns, or is removed), the Vice President immediately becomes President under Section 1 of the 25th Amendment. Then the new President would nominate someone under Section 2 with that nominee becoming the new VP if confirmed by the House and Senate.

      If a President is declared disabled under Sections 3 or 4 of the 25th Amendment, neither office is vacated (the presidential powers temporarily move to the VP) and so there would be no confirmation of a new VP.

      1. So, in your reading, the “Acting President is also simultaneously the VP, and keeps the powers of the VP unless and until the change becomes a permanent one?
        That’s what I thought, too.

        1. Yes, isn’t that pretty clear ?

          All the powers except being President of the Senate, along with its tiebreaker vote, that is.

          1. Why would there be an “except” in there? The VP only has tie-breaking powers if he (or she) is IN the Senate when a tie vote occurs. Sometimes the VP is busy with other duties and isn’t in the Senate to break the tie. The likelihood of this occurring seems rather high if the VP is also acting as President, and has all of those duties to execute as well as the ones that were already on the VP’s plate.

            1. The except derives from “The Senate shall chuse […] a President pro tempore, [president of the senate for the time being] in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”

              Since the president pro tempore does not cast a tie-breaking vote when the VP is absent, it would seem they can’t either when the VP is acting president of the USA. On the other hand, as Lee suggested elsewhere in this thread, perhaps they could if the president pro tempore wasn’t a sitting senator.

              1. “if the president pro tempore wasn’t a sitting senator.”

                The President pro tempore of the Senate is drawn from the Senate, in much the same way the Speaker of the House is drawn from the Representatives.

                1. So far. But, I don’t think the Constitution precludes having someone else.

                  1. Not explicitly, no.

                  2. I would not recommend taking legal advice from NBC, but for what it’s worth :

                    https://www.nbcnews.com/politics/congress/can-outsider-be-speaker-house-n441926

                    The Clerk of the House agrees with the office of the House Historian, which says the speaker “has always been (but is not required to be) a House Member.”

                    There’s nothing obvious that distinguishes the Speaker and the President pro tempore on this pre-existing membership question.

                    1. I’ve seen idle talk about the idea of the GOP House majority in 2023 making Donald Trump the Speaker of the House.

                    2. Again with the “people are saying.”, this time mixed with an overdose of wishful thinking.

              2. perhaps they could if the president pro tempore wasn’t a sitting senator

                The reason why I think this, though it’s silly, is not absolutely-mindbendingly-on-recreational-drugs-silly, is the word “but”, in

                “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided”

                The word “but” betokens contrariness – that the sentence has taken an unexpected turn. Here, “but” implies that, but for the “but”, it would be a natural inference that the President of the Senate, merely by virtue of that office, is a member of the Senate, and as a member of the Senate, has a vote like any other member.

                The words following “but” provide that we are not to be allowed to retain the effect of that inference, but must note that the President of the Senate does not have a vote like any other member, except when the other senators are equally divided.

                Thus the structure is not so much that the President of the Senate is specially awarded a tiebreaking vote out of thin air – it is that the President of the Senate is denied his right as a member to vote….except in this particular circumstance of a tie. His tiebreaking vote is thus the residue of his member’s right to vote, after most of that has been nixed by “but shall have no Vote”

                This implies that Presidency of the Senate confers membership of the Senate, but with restricted voting rights. It is not immediately obvious, then, why Presidency of the Senate pro tempore should not also confer membership of the Senate on whoever holds that office (unless they are already a member.)

                Perhaps with similar implications about voting rights as for the full time President of the Senate. But also perhaps not.

      2. So an obstructionist party (not naming names, but I bet you know who it would be) might block a confirmation vote in the Senate and wind up with no tiebreaker…

    2. If the VP is transmogrified into the President, that is an instantaneous event effected by the direct action of Section 1 of the 25th Amendment ….”the Vice President shall become President.”

      And it is at that point that there is a vacancy for Vice President. So there is no point when the same person in question is both President and Vice President.

      However I recall asking a while back about the peculiar practice whereby the Senate sometimes appears to be consenting to the appointment of judges, before there was any vacancy. The actual words :

      “and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States”

      do not seem to rule out consent in advance of a vacancy, or (arguably) in advance of nomination.

      However the words for a new VP :

      “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”

      do not seem favorable to a pre-vacancy confirmation procedure. The taking of office on confirmation idea seems to preclude confirming someone who hasn’t been nominated yet.

      So trying to pre-confirm a new VP before the current VP takes on the new job would seem tricky.

      1. “If the VP is transmogrified into the President, that is an instantaneous event effected by the direct action of Section 1 of the 25th Amendment ….”the Vice President shall become President.”

        And it is at that point that there is a vacancy for Vice President. So there is no point when the same person in question is both President and Vice President.”

        You seem to be assuming your conclusion. I don’t think it’s that simple. If they meant that assuming the office of the Presidency meant simultaneously leaving the office of the Vice Presidency, they would have put both parts in the text.

        1. 1. If the Vice President was to remain Vice President as well as becoming President, there would be an “also” in the text between “shall” and “become”. The fact that there isn’t (as well as common sense) suggests your interpretation is perhaps on the fanciful side

          2. I am fortified in my conclusion by the fact that the OLC opinion linked by EV agrees with me, and doesn’t mention, far less discuss, your interpretation

          3. and by the fact that in the only actual application of the relevant rule, the newly anointed President Ford did not resign his position as Vice President, but simply proceeded to nominate Nelson Rockefeller on the assumption that there was already a vacancy for VP. No one in Congress queried this conclusion.

          1. In theory, the Founders (and subsequent amendors) wanted to provide a mechanism by which the person wielding the powers of the various offices of the United States would be known, to avoid a situation similar to what befell Haiti earlier this year, when at least two different people claimed to be acting with the authority of the government, and no clear way to tell which one actually did, except by checking to see if the rest of the government accepted or rejected the claim.

            If you assume the goal is to ensure that the offices are staffed at all time, then the sequence of 1) VP moves up a step in rank, then nominates a new VP to fill the prior office leaves a hole in which there is no VP, which is not a problem if we assume that everybody is trying to assure a smooth transition, in which case the new President is presumably nominating a new VP who is acceptable to everyone else, and the Congress (at least the Senate part of it) takes swift action to either confirm or deny the proposed nomination. Neither half of that previous sentence should be assumed in the current political climate, as observed in the filling of judicial vacancies. One or both parties may see advantage in keeping an office vacant and proceed to make it so. The courts can operate short-handed, and the Vice Presidency may be seen as a subcritical hire, but there are duties there that do need to be performed.
            I think the position that the person most recently elected or appointed VP remains the VP until a new VP is elected or appointed is a logical assumption. If whichever party is not controlling the Presidency objects to having a single person wielding the power of both the Presidency and the Vice-Presidency, they can work to get a new VP appointed and confirmed.
            If you work with that assumption, though, what happens if the foot-dragging is coming from the guy wearing two hats? Suppose that guy fails to nominate a new VP? What’s a party with only half control of the Senate supposed to do? Well, the power of the federal government is divided three ways, so seeking allies would seem to be required to resolve that problem… Perhaps they can file a suit with the Supreme Court to force a nomination, or perhaps they vote to confirm a candidate pre-emptively. Or, perhaps they get oppressed in actual fact, in which case they can make a case directly to the electorate that they need to hold more Senate seats after the next election. In the long run, all those problems where you get a power-hungry chief executive take care of themselves. Cheney successfully made the argument that Team W needed to stay in charge to see through the war effort, and then the D’s ran against that when the wars turned unpopular, capturing House and Senate in 2006 and the Presidency in 2008. The R’s argued that the D’s had too much power and regained control of Congress in 2010. They then decided that they were going to make sure that Obama was a one-term President, and in the process, made him a two-term President.

            1. Whatever the merits of your suggestions, the facts are that :

              1. the Republic lasted quite a while without any procedure to fill a vacancy for Vice President. Note that has often been no Vice President, often for years on end, including during WW2 after FDR died

              2. Under the procedure now adopted the President cannot nominate a replacement Vice President until there is a vacancy. And while the Vice President is Acting President, there is no vacancy

              3. The only two times the 25th Amendment has been used to instal a new Vice President has been run, the Congress was quite content to take two months, and four months, to confirm the President’s nominee for replacement Vice President, so they hardly regarded it as an urgent matter.

              1. “The only two times the 25th Amendment has been used to instal a new Vice President has been run, the Congress was quite content to take two months, and four months, to confirm the President’s nominee for replacement Vice President, so they hardly regarded it as an urgent matter.”

                If only half of the Senate considers it an urgent matter, it’s gonna talk longer than 2 months, or even 4 months.

                1. You might even get a new McConnell rule, a President is not allowed to nominate a VP if it’s less than 4 years until the next election.

              2. “1. the Republic lasted quite a while without any procedure to fill a vacancy for Vice President.”

                There’s this thing called an “election” that gets held every 4 years, maybe you heard about it? It was in all the news…

          2. “1. If the Vice President was to remain Vice President as well as becoming President, there would be an “also” in the text between “shall” and “become”. The fact that there isn’t (as well as common sense) suggests your interpretation is perhaps on the fanciful side”

            This would be true, if my fanciful interpretation was that the same guy was supposed to permanently keep both offices. As used in the preceeding sentence, “permanently” means “until the next Presidential election.”

        2. Article II, Section 1, Clause 6 included “inability to discharge the powers and duties of the said office.” Under the Tyler Precedent, that meant if a President was declared to be suffering such an “inability” (the clause didn’t say how this was determined), the Vice President would become President.

          Section 1 of the 25th Amendment codified the Tyler Precedent regarding a President’s death, removal, or resignation. Sections 3 and 4 treat the “inability” scenario differently, by having the Vice President temporarily step into the President’s shoes (i.e., VP becomes Acting President) without succeeding to the Office of President. The legislative history and everything written about the amendment, before and after its adoption, are clear on this point.

  16. Bottom line here is that Biden is incapable of continuing acting as President. He should have been pushed out pursuant to the 25th Amdt already. Likely two reasons that he hasn’t been. First, almost no one likes Harris or wants her in the WH running the country. And second, is probably that they don’t want to face a unified Republican Senate caucus without the VP’s tie breaking vote. With no tie breaking vote, they lose control over the new VP, and his tie breaking vote. And that means that nothing moves in the Senate that can’t get a single Republican vote – such as SB 1 that preempts state level election fraud measures, or the $3 Trillion upgrade to the infrastructure bill that contains every Dem constituency’s wish list of spending, but not much real infrastructure, through Reconciliation. Plus, that would end confirmation of their more extreme nominations, such as their gun grabber ATF nominee.

    Many are saying that this problem is likely to make the Democrats work and compromise with Republicans in the Senate to get a new VP confirmed. But the Republicans need not maybe agree. I am thinking that they may decide just to ride it out until the next election. Pelosi, as Speaker would effectively be VP, but without the tie breaking vote. But she is liable to be out of that office come November 2022. They may also pick up enough Senators that the Senate is no longer split 50/50. Should be interesting.

    The problem, as we have seen over the last week or so, is that it is very dangerous to the country’s interests to continue on with a President mentally incapable to perform his Presidential duties, continuing in office. We have limped on for six months with a senile President, but his condition appears to be deteriorating, as he is forced to perform, at some low level, in one of the most stressful jobs on this planet. We should retire him to his home in Delaware, where he can fade in peace, but this seems to be prevented by the 25th Amdt, enacted in part to address just this situation, interacting with a 50/50 Senate.

    1. “Bottom line here is that Biden is incapable of continuing acting as President. He should have been pushed out pursuant to the 25th Amdt already. Likely two reasons that he hasn’t been.”

      Reason number one is that reality isn’t conforming to your imagination.

      If you don’t think he’s capable of doing the job, get a better candidate elected next time around. Then sit down and ponder whether you could have done it LAST time around, if you’d nominated a better candidate in the first place.

      1. “Reason number one is that reality isn’t conforming to your imagination.”

        I know, right? Look at all the Trumpsters claiming that there are Americans stranded in Afghanistan, when the White House just assured us that there are no Americans stranded in Afghanistan!

        1. Wait, the MyPillow guy said that Trump would be President this month. Is he putting out press releases touting the fabulous deal he negotiated for us?

          1. Nice high bar you’re setting for Biden. I’m not sure he’s clearing it.

            1. Biden won the election on the platform of “I am not Donald Trump”. He continues to be able to perform at that level.

              1. I knew Democrats had low standards, but I didn’t think they were down to “able to fog a mirror” already.

                1. Why not use the same standards for both parties? Call it the “Thurmond Rule”… didn’t he spend time in both parties? If you can prop him up in the chamber, “his” vote counts.

      2. The reality is that Biden can no longer do the job. And it is getting worse. His cognitive decline is significant since he started his run for President maybe a year and a half ago. It’s noticeable since he assumed office. Your argument that we should get a better candidate next time is nonsensical, and really irrelevant. We have the President that we have, and I was talking about the political consequences of that.

        As for Harris, I am open to evidence that Biden and his people trust her and are willing to trust her with any significant responsibility. I haven’t seen it yet. I don’t really like her either, don’t think that she would do a good job at President, but would greatly prefer her in the job right now than Biden.

        1. “Your argument that we should get a better candidate next time is nonsensical”

          You wouldn’t think it was nonsensical if you thought you could do it.

    2. Delusional, desperate, disaffected downscale clingers are among my favorite culture war casualties.

      And the bulk of the Republican Party these days.

    3. Bruce,
      Unless the President is removed from Office, the Office of the VP is not vacant and no one can be appointed VP. If the President does not want to be removed, he declares himself fit and removal takes a 2/3rds vote in both hpuses. That is a mighty high bar

      1. That may be what is in the back of the minds of Biden’s cabinet, in their decision not to declare him incompetent. Of course, they should owe him a duty of loyalty, but the theory is that their higher duty is to the country.

        Still, the 2/3 vote by both houses of Congress is interesting. If all Republicans vote for removal, since both houses are almost evenly split, it would take roughly 1/6 of each, about 1/3 of the Dem caucus, to remove Biden. This is where the VP as tie breaker comes in again. There might be 1/3 of the Senate Dems who agree that Biden is not mentally competent to do the job, but removing him from the Presidency threatens Schumer’s ability to get anything done in the Senate. He might tokenly be Majority Leader, but that title would probably be mostly hollow, at least until a compromise candidate for VP can be agreed upon.

        I think that Biden is mentally incapable of doing the job as President, and the mess in Afghanistan is primarily a result of that. But my opinion is completely irrelevant. What matters are the opinions of the Biden family, his cabinet, and 1/3 of the Dem caucuses in both houses of Congress. I expect that Joe Biden still wants to be President, and has the support of his wife, and likely at least his son. Which means that they would probably push back against his cabinet declaring him unfit. The scary thing is that he appears to have decently advanced senile dementia. People suffering from such often don’t really realize that they are suffering from it – not that they think that they aren’t, but rather that they are no longer capable of enough introspection to make that determination. As an example, my wife took her father’s keys away after he was diagnosed with Alzheimer’s. Her sister gave them back, when asked, and he immediately got lost in downtown Las Vegas, miles from home. When pressed, he couldn’t explain why he had left, or where he was trying to go. His explanations would just wander off. But if asked if he were fine, he would respond that of course he was. And then wander off again. I think that we are seeing more and more of that with Biden. If you were to ask him if he were mentally fine, he would assure you that he was, but then wander off mentally, quickly showing that he wasn’t. Which is to say that probably the only way that he would agree with being pushed out, is if his inner circle, and esp his wife, pushed him to resign.

        On the one hand, this is a problem with the 25th Amdt. On the other, I don’t see a decent alternative – and right now we don’t have one. It’s almost as if someone had designed the perfect case to subvert that amendment. We have a President who is probably so cognitively impaired that he shouldn’t be President, but that cognitive impairment prevents him from realizing his disability. Meanwhile his party probably cannot take the political risk of invoking the amendment and pushing him out, due to the 50/50 split in the Senate, and the loss of the VP’s tie breaking vote there.

        1. “That may be what is in the back of the minds of Biden’s cabinet, in their decision not to declare him incompetent.”

          Or, they not think he’s incompetent. Alledgedly, this is why Trump lasted 4 years (Apparently, someone thought it was something worth testing out, because Trump actually was given cognitive testing.)

      2. That is a mighty high bar

        Kinda. But also kinda not.

        The mechanics of 25A Section 4, pared to the essentials, are :

        1. VP and principal officers declare President incompetent
        2. VP immediately takes over as Acting President
        3. The now deposed President writes to Congress saying “I’m fine”
        4. 4 day delay, at the end of which VP and POs reply “No, he’s not.”
        5. 21 delay while Congress twiddles its thumbs
        6. THE BIG VOTE, in which the conspirators fail to register a two thirds majority in each Chamber
        7. President resumes powers…….
        8….and nine seconds later, the VP and POs repeat step 1

        Thus so long as the VP has the majority of the principal officers and at least a third of one of the two Chambers of Congress on his / her side, the VP gets to take over indefinitely, with intermittent nine second gaps.

        So long as it’s still principal officers, and not a new body substituted for them by Congress, the President can retaliate by sacking the principal officers during his nine seconds back in power. No principal officers, no majority thereof available. Though whether “acting” principal officers might do is another question.

        1. You skipped over the step where one or the other tries arresting officers who aren’t sufficiently loyal to their guy. (I’m guessing the idea of sending a mob to invade the capitol and hang the disloyal VP doesn’t occur to Biden.)

        2. Lee,
          After step 3, or simultaneously with step 3 and in any case before step 4. The temporarily reinstated President sacks Cabinet members who voted to oust him. The POs are no longer there to reply “No he’s not.”
          By the way it seems that the President retains his position between step 3 and step 5.

          All departments have rules of succession as Acting PO so the bureaucracy can function as usual. Italy proves that the country can actually run better when no one is in charge at the top

          1. By the way it seems that the President retains his position between step 3 and step 5

            I don’t think I agree with you, though I agree it’s not quite clear :

            ….he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days….

            So the question is whether (a) the “unless” creates a condition precedent to the President’s resumption of his powers – ie the expiry of the four day period during which the conspirators are drafting their “no he’s not” note (though they could do it immediately.) Or (b) whether he pops back as President within the four days, until they’ve done their note.

            My doubts about (b) are based on the closing words that post the Congressional vote “the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

            This (ie”continue”) implies that at the time of the Congressional vote, the VP is exercising the power of the Presidency. And despite explicit provisions at the front and back of Section 4 indicating who’s in charge, there’s no words in the middle providing for another back and forth between the P and the VP. Which implies to me that the VP stays in charge until the process has run its course.

            1. Correct. The continue/resume wording is meant to convey that during 21-day Congressional review the VP is Acting President. This was brought up multiple times during the amendment’s drafting and during floor debates. The reasoning was that the VP and Cabinet would almost assuredly have a reasonable basis for relieving the President of command, as oppose to them simply staging a short-term coup, and so the safer course of action was to let the VP remain Acting President while Congress reviewed the situation.

          2. “Italy proves that the country can actually run better when no one is in charge at the top”

            Haiti, on the other hand…

  17. The Vice Presidency seems to have been a problem for the Constitution’s drafters. A number of provisions have (or had) unintended consequences or otherwise weren’t well thought out.

    1. True enough. For example, the idea that the VP would become President if something happened to the guy elected to the job wasn’t in the original document. It just happened that way, and nobody complained, so they came back later and amended it so that that was the plan.

      1. Why did they decide that the Vice President would preside over the Senate? Was it just to give him something to do? It confuses the separation of powers.

        1. Who really knows? It is what it is.

          Where is Ben_ or Mr Ed2 to enlighten us?

        2. You’ve got this presumably great man, easily Presidential material, and you’re going to have him spend 4 years doing nothing? What a waste! And, if the Senate is deadlocked, why not give somebody from the outside a vote to break that tie?

          1. The VP has duties to attend to, besides standing around waiting for bad news.

        3. “Why did they decide that the Vice President would preside over the Senate? Was it just to give him something to do? It confuses the separation of powers.”

          The original plan for the Constitution does not provide for political parties. Each element of the new federal government represents somebody or somebodies, and was expected to act directly on their behalf. The Senate represents the states. Putting a federal officer in charge of keeping them orderly helps avoid things like the honorable Senator for Texas calling the honorable Senator from California a homosexual and challenging him to fistfight when the Senate is preparing to vote on whether or not to allow offshore oil drilling.

  18. If you wanted to go from a textualist interpretation, the text is pretty clearly drawing a distinction between becoming the President, and being the Acting President on a temporary basis because the President is alive and has not been removed from office.

    1. The Edith Wilson Administration had come about by the time the text was amended to allow for temporary assumption of Presidential duties due to incapacity.

    2. Edith Wilson being de-facto Acting President (what was called “Petticoat Rule”) occurred in 1919. The 25th Amendment was adopted in 1967.

      1. That is the order I put them in, yes.

  19. Late to this, and perhaps a bit squirrelly, but I don’t see why the President Pro Tem couldn’t just name to the chair that day someone from their own party who was intending to vote the other way. Depending on the procedural posture and the rules, you might even draft a member of the opposition. (Not without precedent.)

    Mr. D.

    https://crsreports.congress.gov/product/pdf/RL/RL30960

    1. Because,

      1) You don’t have to take the position.
      2) It wouldn’t gain you diddly, because they could still vote.
      3) It would actually hurt you, because you’d have given an increment of power to your opponents.

      1. You’re probably right — my thought was that someone from the same party (no names, no pack-drill) would feel compelled to take the assignment, and that the presiding officer (when not the pro tem.) doesn’t vote. A mistake as to either of those, or really any number of other things, would be enough to doom the plan.

        Mr. D.

  20. T.D.
    I don’t see what that would accomplish. The President Pro Tem does not relinquish his right to vote on any and all questions before the Senate.
    https://crsreports.congress.gov/product/pdf/RL/RL30960

    1. You’re probably right, my understanding was that the Pro Tem voting rule was sui generis, and didn’t apply to other presiding officers.

      They could always ask the Q-Anon shaman to preside, now that he has the work experience.

      Mr. D.

  21. In other news of the day, the Pfizer vaccine is no longer an “experimental vaccine.”
    We’ll be waiting for the next excuse.

    1. “But I don’t wanna” has been the real reason all along.

      1. I encourage you to keep with that line. The majority of black people who have not been vaccinated will certainly take it well.

        1. And that’s my problem because…

  22. “The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”

    Thank you. That’s the part that seals the deal, IMAO. No vote for the VP in the Senate while acting as President

    1. So he (or she) takes off the “Acting President” hat to run down to the Capitol to break a tie, then runs back to the White House to act as President and applaud the Senate for finally reaching a decision

      1. Don’t believe that’s possible.

        >>>
        Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
        <<>>
        Section 3. 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.
        <<>>
        Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. [Details for handling disputes about this omitted. -EV]
        <<<

        Again, there's nothing in there about the VP being able to voluntarily and temporarily give up the role of Acting President.

        Now, if you want to see an actual insurrection, not the Jan 6 play time fake one, they can try to game that.

        But I think the end result of that would be the Senate would no longer be 50-50. And there's a lot more Democrat Senators with GOP governors who get to replace them in case of death, than the other way around.

        1. “Don’t believe that’s possible.”

          You don’t think it’s possible to run from the White House to the Capitol and back? Why not?

  23. I think the solution to the tie-breaker problem is that when the President pro tempore of the Senate assumes the role of acting President of the Senate, he only votes in the case of a tie. So Harris were Harris assume the offoce of Acting President, Patrick Leahy would assume her old role as President of the Senate, and would not have a vote except in the event of a tie.

    But since Leahy, having assumed the duties of President of the Senate, would no longer have his vote as an ordinary senator, the composition of the Senate for non-tie votes (assigning the Is to the Ds they cacus with) would be 49(D) v. 50(R), so there probably wouldn’t be that many ties.

    Problem solved.

    1. The President pro tempore of the Senate does not lose his vote just because the VP/POTS is not present or is Acting President. Why should Vermont be punished in this scenario? Leahy would still be a Senator and entitled to vote in the Senate just as he is currently.

      1. The answer is to not vote an even partisan split in the Senate. Either the electors need to take this into account, or assign a Senator from the amalgamated territories to make sure there’s an odd number of Senators in the first place.

        1. Re-reading this, I didn’t mean to introduce confusion. Note the difference between Electors, members of the Electoral College, and electors, people who vote in elections.

      2. Think of me as a distinguished law professor. I’m not telling you what the law is; I’m telling you what I think it ought to be.

    2. I think the solution to the tie-breaker problem is that when the President pro tempore of the Senate assumes the role of acting President of the Senate, he only votes in the case of a tie.

      This is all dealt with here :

      https://crsreports.congress.gov/product/pdf/RL/RL30960

      and has not been in doubt since…..1792.

      see bottom of page 8 and top of page 9

      Under the Constitution, the Vice President may cast a vote in the Senate only when the body is equally divided. The question of whether a President pro tempore retained his vote while he was performing the duties of his office was clarified by a Senate resolution adopted on April 19, 1792, which declared that he retained “his right to vote upon all questions.”

      1. If it was resolved in a vote by the Senate, it could ALSO be un-resolved by a vote by the Senate.
        But there’s approximately 0% of this suggestion passing, because in the current situation, you get a party-line vote 50-50 and Harris breaks the tie in favor of her party. They’re not going to set up a deal that leads to them losing control of the Senate, if their guy is incapacitated, on the possibility that maybe its the other guys who have this problem when and if it actually ever manifests.

  24. So, here’s the new interesting question:

    Exactly how disabled does Joe have to become before the Democrats have to replace him?

    As Bruce said above, teh Democrats clearly don’t want to. But.

    The Democrats want the current split so that “Joe” can “make nominations” and “sign bills”, and Kamala can be the 51st vote for them.

    But if the President hasn’t been seen in public for a while, could Senate Republicans sue to demand proof that he actually did make the nomination, rather than his staff / wife doing it? Could someone affected by a new law supposedly signed by the President sue, on the grounds that the President wasn’t actually capable of signing it.

    If the Supreme Court rules that Biden has to show up and prove his mental competence, and he fails, then what happens?

    Right now, the Supreme Court is being threatened with Court Packing if they piss off the Dems too much. If Harris becomes Acting President, that threat goes away. So they don’t have a strong incentive to cover for Joe

    1. “Exactly how disabled does Joe have to become before the Democrats have to replace him?”

      He’d have to be, like, greg H or greg I level incompetent.

    2. “if the President hasn’t been seen in public for a while, could Senate Republicans sue to demand proof that he actually did make the nomination, rather than his staff / wife doing it? Could someone affected by a new law supposedly signed by the President sue, on the grounds that the President wasn’t actually capable of signing it.”

      hahaha… NO.

    3. “If the Supreme Court rules that Biden has to show up and prove his mental competence”

      Since they know that they don’t have the power to do this, you should stop putting your hopes on it.

      1. “The Supreme Court rules that members of the Senate have Standing to require proof that the nominee was actually submitted by the President before being voted on. We therefore rule that, until the President proves that he did indeed make that nomination, nothing this individual does will be recognized as valid by any Court in the US.”

        “… this law is not valid and can not be enforced until the President proves that he did indeed sign it.”

        Of course, the funniest part about this is that ever you aren’t trying to pretend that Biden is actually mentally competent. Just that you think the Democrats will be able to get away with puppet Joe

        1. “you aren’t trying to pretend that Biden is actually mentally competent.”

          Fortunately for me, I guess, is the fact that nobody needs to pretend this. Reality isn’t just for squares, man.

        2. Seriously, it’s like you LOOK for opportunities to say something stupid.

          “Puppet Joe” is a product of wishful thinking. You should stop that.

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