Morbid Political Curiosity

[Can't tell the difference between politics and policy? Need personal advice of a political nature -- or vice versa? Send your question to Stumped. Questions may be edited.]

Dear Stumped,

With all of the talk of Sen. John McCain's age and reports of heightened Secret Service protection for Sen. Barack Obama, I wonder: Are there are any guidelines for succession if either were to die or become incapacitated before becoming president?

Presumably, it would be up to the parties if such a tragedy were to occur now, with neither candidate having declared a running mate. But what if the event occurred after the No. 2 position on the ticket had been filled? Would that person automatically become the candidate? And what would happen if the president-elect were to step in front of a bakery truck sometime between winning a clear victory in November and taking the oath of office in January?

As a patriotic American living abroad, I hope our country is never in such a position. But I am curious if protocols are in place.

Many thanks,

TexScot

Dear TexScot,

It's an interesting, if morbid question, because it serves as a reminder -- as did the 2000 Bush-Gore stalemate -- of how ambiguous and undefined our government's ground rules can be. Specifically, the answer to your question underscores the confusion surrounding who actually elects our nation's president, and when.

When we cast our ballots on the first Tuesday in November, we assume the winner that day (and admittedly it's the winner in the state-by-state Electoral College arithmetic, not to the popular vote) becomes the president-elect. But the Electoral College is called the Electoral College for a reason, and as a constitutional matter, it is arguable that the country does not have a president elect until the "electors" meet in their state capitals on the first Monday after the second Wednesday of December (got that?) to cast their votes.

If a presidential or vice-presidential candidate is incapacitated between a party's nominating convention and the meeting of the Electoral College, the party's central committee would gather to pick a substitute candidate. Again, what's interesting about this timeline is that the intervening general election (that supposedly huge day between the conventions and the Electoral College balloting) would turn out to be fairly irrelevant. While a party would presumably feel great pressure to appoint its vice presidential candidate as its presidential candidate, it could probably choose someone else.

Things get more nebulous if a candidate on the ticket dies or becomes incapacitated after the Electoral College vote in December but before the congressional certification of the results in January. During this period, does the country have a president-elect? The technical legal answer: Kinda. The most reasonable argument (bolstered by statutory history of the 20th Amendment, which deals with succession issues) would seem to be that the person who obtained the most electoral votes is the president-elect, even if Congress hasn't yet certified the votes.

The relevance of inquiring precisely when the next president becomes president-elect is that the 20th Amendment states that the vice president-elect becomes the president-elect if that person can't take the office at the beginning of his or her term. So, whenever the winning candidate becomes president-elect (and you can choose between the November general election date, the December Electoral College vote or the January congressional certification) is the point at which the succession is taken out of the party's hands and the Constitution kicks in -- making the vice president elect's ascension to the top of the ticket automatic.

Okay, that is the long answer. The short answer is that, in the unfortunate event a candidate is incapacitated in the period between the election and the inauguration, the party and Congress would improvise, and disaffected individuals would take the matter to the courts, and the Supreme Court would tell us what the rules are. And just for fun, as it did in 2000, the court might add that its decision has no precedential value for future elections.

Dear Stumped,

I am in a relationship with someone who is hyper-political, and I just can't keep up. I care about current events, but I don't obsess over the daily ins and outs of this endless campaign, and I worry my boyfriend is getting annoyed that I no longer care as much as we did back in the halcyon days of Iowa and New Hampshire. I keep waiting for his level of interest to ratchet down, as it does in the sports world after a Super Bowl or the Final Four, but there appears to be no letup on the horizon. I don't want him to dump me because I am not following the two candidates' daily conference calls (!) -- but I also want to have a life. What to do?

Janice

Dear Janice,

If your worry is that your boyfriend is going to dump you because you're not as interested in the presidential campaign as you once were, then my worry is that -- how to put this gently? -- you both need to get a life.

Of course, it's a healthy sign that you at least realize that you have (or once did) an unhealthy obsession. But without knowing more about your relationship, I am reluctant to dispense advice. Does your boyfriend say things like, "If you really cared, you'd help me tabulate this county-by-county budget spreadsheet for Obama's field operations in Ohio"? Then it may be time to make a preemptive strike and move on yourself. But as I said there are far too many unknowables, to paraphrase Rummy, for me to say for sure.

But look, I've been there: I've known women who pretended to have a deep interest in the Pittsburgh Steelers from December to January, during the playoffs, only to ask, "The Pittsburgh who?" when the draft came in April. So even though I know what your boyfriend feels like, I can also say that your boyfriend is the one acting abnormally.

At this point in the campaign, you should expect to have a diminished level of intensity. We are in a bizarre no-man's land, with two presumptive nominees yet to be formally nominated. Even ardent political junkies are taking a stretch, going to the bathroom, treating these weeks as a kind of halftime. (Maybe Campaign 2008 needs a disclaimer: "Voters exhibiting heightened political passion lasting more than five months should call their doctor.")

The real question is why your boyfriend needs you to share his obsession. You clearly appreciate and share it to some degree, but it is unhealthy for him to require you to be as invested in the campaign minutiae as he is. Do you have the same need to have him validate all your interests and obsessions? I suspect not.

By Andres Martinez |  July 1, 2008; 12:00 AM ET
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Comments

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Hmmmmm. Well, we've seen and heard repeated contentions and actions of Bush's inherent presidential powers and of events requiring secrecy under national security considerations in defiance of and trumping Congressional powers haven't we?

So, assume that very shortly before the newly elected president is inaugurated, he dies, electrifying the Nation and the World. How about this: In order to protect the People and prevent the Islamofascists from emerging from their domestic cells we hear about in this Country, our Commander-in-Chief abolishes or postpones the inauguration and announces that he will continue in office fully in command until such time when the security threat is lifted so that the successor to the Office can be determined.

Posted by: Janus555 | July 4, 2008 8:38 AM

Odd that the question about obsessive interest in politics should surface today, the first that I didn't read all the Opinions. I, too, want to stay informed and up to date, but this seemingly never ending campaign has gone on too long. I'm worn out; I give up, which will be good news to my friends and family, whose most apt adjective for my recent conversations should be "B O R I N G"

In October I'll start reading again.

Posted by: Mary | July 2, 2008 1:59 PM

Re both questions;

WTF?

Posted by: waterfrontproperty | July 1, 2008 11:42 PM

Oh, for heaven's sake!!

Posted by: HUH??? | July 1, 2008 10:32 PM

I suppose Obama is still not out of the dark as far as Clinton is concerned.
If something were to happen to him then the pick would most likely be the runner up and that would be Hillary.
And you just never know with the fringies out there still mourning over Hillary and what they can do.

Posted by: vwcat | July 1, 2008 8:44 PM

Nothing will happen if Obama or McCane die."Life goes on." Democratic party and Republican party bosses will do proper thing. JFK and Lincoln got killed and we survived. Men are extreamly good for this type of thing. We "the women" will wag our tail and support "We the people." Sarcastic? Yes!

Posted by: Mimi from Philly | July 1, 2008 6:06 PM

Of course, Hillary would be the next POTUS.

Posted by: Post American | July 1, 2008 5:55 PM

Disgusting. You should not be dignifying this issue with comment, in light of earlier assassination remarks.

Posted by: Matt | July 1, 2008 4:49 PM

I only mention the 25th for the system it creates -- the status of "acting president" and further reinforcement of the concept that Congress determines questions of presidential succession.
Of course, we have the current president until Jan. 20 following an election.

Posted by: Ego Nemo | July 1, 2008 3:48 PM

It May the only hope for this nation. My dog would make a better President than either candidate!

Posted by: Anonymous | July 1, 2008 1:30 PM

...everyone needs to read "People's Choice", by Jeff Greenfield...it has a lot of history and a lot of humor as Jeff answers the question: What happens if the President-elect dies before Inauguration Day ???

Posted by: frank44 | July 1, 2008 12:08 PM

Even if named by the deceased candidate as his preference for VP, such a person would not automatically succeed as a party's nominee.

Posted by: ergo sum | July 1, 2008 11:28 AM

The 25th amendment has nothing to do with the president-elect or the vice president-elect. It has to do with presidential or vice presidential vacancies and presidential disability.

If the president-ELECT, or a nominee, is incapacitated, we still have a president (that would be Bush), so the 25th would not come into play. 25th only comes into play between inaugurations.

Posted by: Anonymous | July 1, 2008 10:58 AM

Gosh, what a waste of bytes.
As a previous commenter pointed out, Section 3 of 20th Amendment, which you cite, was superseded by the 25th.
Stumped, the advice you gave has been inaccurate since 1967!
[I guess you're having your Al Haig Moment: http://query.nytimes.com/gst/fullpage.html?res=9507E6DF1139F936A35757C0A967948260&sec=health&spon=&pagewanted=all]
Additionally, it is usually good journalistic practice to CITE YOUR SOURCES. Not one law professor, not one constitutional scholar, and you even give the wrong citation to the U.S. Constitution.

Here's another question for Stumped, which I will answer.
Question: Can we trust Stumped's information. Answer: No.

So, for those who like good research, here is the ACCURATE ANSWER:

Read the 20th and 25th amendments to the Constitution of the United States:

20th: "... Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified."

25th: "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. ... 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."

Both amendments state this principle:
"When there is doubt over who is president, CONGRESS is empowered to sort it out."

Stumped is wrong with the legal analysis.
There is no knowing what men may do to the law when crisis arises, but if they choose to follow the law, the 20th and 25th amendments make it crystal clear that in such a scenario -- where the president-presumptive or president-elect -- dies before the Electoral College meets, Congress, and Congress alone gets to sort it out before the current president's term ends on Jan. 20. There will be lawsuits no doubt if that happened, but any plain reading of the constitution must conclude that with a valid election, the next stop if Congress. The courts, under separation of powers, would have to rule that they could not intervene in Congress's sole power to certify validly cast electoral votes or, by powers granted by the 25th Amendment, create an Acting President during a time of succession crisis.

With the passage of the 25th amendment, most legal and constitutional scholars have concluded for 40 years, the law of the land is the principal that "there is always a president." And Congress, as representative of the people in a constitutional order ordained by a sovereign populace, sorts it out.

Posted by: EgoNemo | July 1, 2008 10:09 AM

I would vote for Michelle Obama. Imagine - First Woman President, First African American President - all-in-one. She is smart, qualified, intelligent, graceful - no less than either Hillary Clinton or Condi Rice, and more! But I would also pray for Sen Obama's long life.

Posted by: gk | July 1, 2008 9:05 AM

Janice,

you should dump the boyfriend and go out with mobedda.

Posted by: Hal9000 | July 1, 2008 8:41 AM

It's the 25th Amendment.

Posted by: Gary | July 1, 2008 7:41 AM

How can this column be such a good idea in principle, and so horribly useless in practice? All it takes is picking idiotic questions week after week after week after week after....

Posted by: mobedda | July 1, 2008 7:30 AM

Why not think what will happen to you soon and the freedom in the world or this country which is already happening if it continues on its destructive path?

Posted by: la | July 1, 2008 5:01 AM

what if? kharma,move on,get over it.

Posted by: kent | July 1, 2008 4:49 AM

It doesn't matter what happens to either one, the country is in a pickle because of greed and corrupt leadership. All civilizations rise and fall. This one is just free-falling.

Posted by: F Souder | July 1, 2008 4:29 AM

This question has the potential to unleash fictional imagination,leading to presumptions,what then,who will be there,politically or constitutionally,am not sure about the ramifications of the question raised by the author.However,am curiously interested in start thinking about what will happen if such a situation arises,debates,tv shows,editorials,opinions and a lot of intersting stuff.

Posted by: shuja khalil | July 1, 2008 4:16 AM

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