John Heaton (jheaton) wrote,
John Heaton

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A meditation on the U.S. Constitution (plus a little Bush bashing)

As sort of an intellectual exercise, I recently gave some thought to what might be the most outrageous yet not implausible thing I could possibly imagine President Bush doing during his second term. After thinking about it for a couple of days, I settled on a scenario wherein he would ask Vice President Cheney to resign, and use a recess appointment to make the Republican Presidential nominee the Vice President without Congressional approval. It would be a a risky move—it would be pretty controversial, and there's no guarantee it would provide any advantage, insofar as three of the last four sitting Vice Presidents to run for President (that would be Nixon, Humphrey, and Gore) lost—but Bush does have a fondness for making controversial recess appointments, and it wasn't so off the wall that I was willing to rule it out.

However, it occurred to me earlier this evening it might be unconstitutional, which would ratchet up the off-the-wall factor somewhat. But having researched it, I don't think it is. Take a look at Section 2 of the 25th Amendment:

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.

Very straightforward. The President's power to make appointments is set forth in Article II, Section 2, Clause 3:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

That's also pretty straightforward. It's hard to imagine an interpretation of the words "all Vacancies" that would exclude the Vice Presidency. Ergo, it's not unconstitutional, so the only thing stopping the President from appointing a Vice President without Congressional approval is his sense of shame. In other words, there's nothing stopping him. Now, I'm not saying I think it'll happen. But if it does, boy, won't I look smart!


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