Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/343

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CH. XXXVI.]

EXECUTIVE—VACANCY OF OFFICE.

335

time being shall act as president, until the disability be removed, or a president shall be elected.^[1]

§ 1476. No provision seems to be made, or at least directly made, for the case of the non-election of any president and vice-president at the period prescribed by the constitution. The case of a vacancy by removal, death, or resignation, is expressly provided for; but not of a vacancy by the expiration of the official term of office. A learned commentator has thought, that such a case is not likely to happen, until the people of the United States shall be weary of the constitution and government, and shall adopt this method of putting a period to both, a mode of dissolution, which seems, from its peaceable character, to recommend itself to his mind, as fit for such a crisis.^[2] But no absolute dissolution of the government would constitutionally take place by such a non-election. The only effect would be, a suspension of the powders of the executive part of the government, and incidentally of the legislative powers, until a new election to the presidency should take place at the next constitutional period, an evil of very great magnitude, but not equal to a positive extinguishment of the constitution. But the event of a non-election may arise, without any intention on the part of the people to dissolve the government. Suppose there should

↑ Act of 1st March, 1792, ch. 8, § 9.—If the office should devolve on the speaker, after the congress, for which the last speaker was chosen, had expired, and before the next meeting of congress, it might be a question, who is to serve, and whether the speaker of the house of representatives, then extinct, could be deemed the person intended. 1 Kent's Comm. Lect. 13, p. 260, 261. In order to provide for the exigency of a vacancy in the office of president during the recess of congress, it has become usual for the vice-president, a few days before the termination of each session of congress, to retire from the chair of the senate, to enable that body to elect a president pro tempore to be ready to act in any case of emergency. Rawle on Const. ch. 5, p. 57.
↑ 1 Tuck. Black. Comm. App. 320.

[1] Act of 1st March, 1792, ch. 8, § 9.—If the office should devolve on the speaker, after the congress, for which the last speaker was chosen, had expired, and before the next meeting of congress, it might be a question, who is to serve, and whether the speaker of the house of representatives, then extinct, could be deemed the person intended. 1 Kent's Comm. Lect. 13, p. 260, 261. In order to provide for the exigency of a vacancy in the office of president during the recess of congress, it has become usual for the vice-president, a few days before the termination of each session of congress, to retire from the chair of the senate, to enable that body to elect a president pro tempore to be ready to act in any case of emergency. Rawle on Const. ch. 5, p. 57.

[2] 1 Tuck. Black. Comm. App. 320.

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