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Thursday, November 17, 2016

Designated Survivor trailers

As promised, I have not gone back to Designated Survivor, despite it being a hit and haled by many critics. Last night, I caught the trailer for the upcoming episode, which confirmed that decision. Based on the snippets I saw, it appears the plot has turned to Kirkman seeking to nominate a Vice President (who, naturally, seems creepy and possibly linked to terrorists).

But this is constitutionally and legally wrong. An acting president under § 19 cannot appoint a Vice President under the 25th Amendment. For one thing, § 1 says "the President" shall nominate a Vice President. But an Acting President is not a President for this Amendment, which expressly distinguishes the two titles and the two offices. Textually, therefore, an Acting President cannot perform this function. For another, any appointed Vice President arguably would have a greater statutory claim to the presidency. A cabinet official acts as President until "a qualified and prior-entitled individual is able to act." That would seem to include a newly constitutionally nominated and confirmed Vice President. So by nominating and having a restored Congress confirm the creepy guy, Kirkman puts himself out of a job.

If I misunderstand the plot, please let me know. Or maybe Keifer Sutherland isn't supposed to be the star of this show after all.

Update: I just realized that acting-president-selects-VP is a common mistake when television depicts presidential succession--Veep did the same thing in its storyline of a plot to have a deadlocked House making the VP (selected by the Senate) Tom James acting president, then having James select Selina Meyer, the Presidential candidate, as his VP. The problem there was that the vice presidency was not vacant; James had been elected VP and become acting president when the president failed to qualify, but he never would have resigned the vice presidency (which is the source of his power to act as president until the disability is removed). But my reading of the 25th Amendment adds an additional layer to this show's mistake.

Posted by Howard Wasserman on November 17, 2016 at 05:42 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink

Comments

You should ask former Senator Birch Bayh if your interpretation of the 25th Amendment is correct. He is the chief architect of that amendment.

Posted by: Stefan Privin | Nov 18, 2016 12:06:23 AM

I realize that I'm just a lowly engineer, but to me the plain reading of Amendment 25 Section 1 is that the Vice President "become[s]" President (not "Acting President" under the language of Section 3). In that sense, Kirkman is "the" President.

Am I missing something?

Posted by: HokieEngineer | Nov 21, 2016 6:50:37 PM

Yes: Kikrman was not the vice president. He was a lower-in-the-order cabinet secretary (Interior, I think) who succeeded when the VP, at the State of the Union as President of the Senate, was killed in the explosion.

Posted by: Howard Wasserman | Nov 21, 2016 6:55:29 PM

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