Before the actual election results squash my fantasy election scenario (see my first two posts), I want to explore one more question – Who Would Be Acting President Pence’s Vice President? 

The 25th Amendment gives the President the ability to appoint a Vice President, who must be confirmed by a majority of both houses of Congress, whenever there is a vacancy in that office. But in this case, Pence is only acting as President, so is the Vice Presidency actually vacant? If the answer is yes, and there is in fact a vacancy, it would interesting to see who he would select and whether the Democrats in the House would go along with the selection. Would they allow him to name a conservative or would they force him to select a moderate? Assuming someone was nominated and approved, I guess they would have to step down if a President was eventually selected since Pence would resume the Vice Presidency. While it is interesting to consider, I don’t think we would have to worry about this because the Vice Presidency wouldn’t technically be vacant.

Based on the specific wording or the 20th and 25th Amendments, Mike Pence would be the Vice President while acting as President. The 25th Amendments states “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” This was intended to clarify the original wording in Article II, Section 1, Clause 6 of the Constitution which reads “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President …” This did not clearly state the Vice President would become President, only that the powers and duties would devolve upon him. Note that the 25th Amendment does not cover the situation in which a President has failed to qualify, so in the scenario I laid out Pence does not actually become the President. As far as filling the Vice Presidency, the 25th Amendment requires a vacancy in the office of Vice President. But if Pence is merely acting as President, in accordance with the 20th Amendment, he has not vacated the Vice Presidency. 

So, if my reading of the Constitution is correct, Mike Pence would be both the Vice President and the Acting President. And remember, in this scenario the Senate is split 50-50 between the Democrats and Republicans, so it is likely there will be a frequent need for the Vice President to cast tie breaking votes. Pence could preside over the Senate and cast a tie breaking vote for a bill as Vice President and return to the Oval Office to sign the bill into law as the Acting President? I suppose he could even nominate judges, preside over their confirmation proceedings in the Senate, and cast the deciding vote to confirm.