The first eight vice presidents to become president did not appoint new VPs

Reacting to my last post on questions surrounding the future title and authority of Lieutenant Governor Kim Reynolds, Joe Kristan commented that when a similar controversy arose in 1841, Vice President John Tyler set the “Tyler Precedent” by insisting he would be president for the remainder of the term to which William Henry Harrison had been elected.

I responded that the U.S. Constitution was later amended to say clearly that the vice president becomes president in the event of a vacancy–language that Iowa lawmakers chose not to introduce into our state’s constitution when amending passages related to succession on multiple occasions.

Kristan countered that nobody calls Tyler, Millard Fillmore, Andrew Johnson, Chester Arthur, Theodore Roosevelt, Calvin Coolidge, Harry Truman or Lyndon Johnson “acting presidents,” just because the 25th Amendment was subsequently adopted in 1967.

True. But guess what? None of those eight men appointed a new vice president during the term in which they assumed the powers of the presidency.

President William Henry Harrison’s death sparked a succession debate because of ambiguous language in Article II, Section 1, Clause 6 of the U.S. Constitution: “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 […].”

The framers of Iowa’s 1857 constitution employed similar language when crafting Article IV, Section 17:

Lieutenant governor to act as governor. Section 17. In case of the death, impeachment, resignation, removal from office, or other disability of the Governor, the powers and duties of the office for the residue of the term, or until he shall be acquitted, or the disability removed, shall devolve upon the Lieutenant Governor.

The Tyler Precedent was “followed for more than a century,” even though the Supreme Court never ruled on the matter. But neither Tyler nor the next seven men who followed the same path to the presidency asserted the authority to appoint a new vice president for the remainder of that term.

This handy list of all U.S. vice presidents shows when the office was vacant, whether because the vice president died in office, resigned before the term ended, or assumed the president’s powers. Most of the eight occasions following the death of a sitting president lasted for years:

• April 4, 1841 – March 4, 1845 (vice presidency remained vacant after Tyler succeeded Harrison as president)

• July 9, 1850 – March 4, 1853 (vacant after Fillmore succeeded Zachary Taylor)

• April 15, 1865 – March 4, 1869 (vacant after Andrew Johnson succeeded Abraham Lincoln)

• September 19, 1881 – March 4, 1885 (vacant after Arthur succeeded James Garfield)

• September 14, 1901 – March 4, 1905 (vacant after Roosevelt succeeded William McKinley)

• August 2, 1923 – March 4, 1925 (vacant after Coolidge succeeded Warren Harding)

• April 12, 1945 – January 20, 1949 (vacant after Truman succeeded Franklin Delano Roosevelt)

• November 22, 1963 – January 20, 1965 (vacant after Lyndon Johnson succeeded John F. Kennedy)

Given that history, I have even more trouble understanding why the Iowa Attorney General’s office so quickly agreed with Governor Terry Branstad’s staff that Reynolds should be able to name a new lieutenant governor after Branstad resigns to become U.S. ambassador to China.

To be clear: no one is disputing that Reynolds will be able to perform the governor’s duties for the remainder of Branstad’s term.

But as Bleeding Heartland discussed here, none of the four Iowa lieutenant governors who filled previous vacancies in the state’s highest office appointed a new lieutenant governor. Joshua Newbold acted as governor for nearly a year after Samuel Kirkwood resigned to become a U.S. senator in 1877. In living memory of the adoption of Iowa’s constitution, Newbold did not assert the authority to choose a new lieutenant governor. Nor was a special election held to fill that office, which was separately elected from the governor at the time.

Some Republicans react dismissively or with anger to those who demand a legal analysis backing up the Branstad administration’s interpretation of our state’s constitution. Yet this question is not merely theoretical.

Allowing Reynolds to appoint a new lieutenant governor would put an unelected person next in line to become governor, if anything happened to Reynolds before January 2019. A plain reading of Article IV, Section 19 of the Iowa Constitution indicates that those powers should transfer to the Iowa Senate president (Republican Jack Whitver). The current wording was adopted recently, in 1988:

If there be a vacancy in the office of the governor and the lieutenant governor shall by reason of death, impeachment, resignation, removal from office, or other disability become incapable of performing the duties pertaining to the office of governor, the president of the senate shall act as governor until the vacancy is filled or the disability removed […].

In last year’s felon voting rights case, Griffin v Pate, the Attorney General’s office pointed to a 2008 amendment removing the word “idiot” from the Iowa Constitution:

[B]oth the General Assembly and voters had the opportunity to amend or clarify the infamous crime language [in the same clause] and chose not to do so. Instead both the General Assembly and the people of Iowa readopted the Infamous Crime Clause in its entirety. […] (“When the legislature amends some parts of a statute following a recent interpretation, but leaves others intact, this ‘may indicate approval of interpretations pertaining to unchanged and unaffected parts of the law.’”)

See pages 12-13 of the Attorney General’s brief filed with the Iowa Supreme Court and Solicitor General Jeffrey Thompson’s presentation during the March 30, 2016 oral arguments, starting around the 57:40 mark of this video.

When state lawmakers voted in the mid-1980s to change portions of the constitution relating to the lieutenant governor and succession, and the people of Iowa approved those amendments in 1988, they could have rewritten one section along the lines of, “the lieutenant governor shall become governor” in the event of a vacancy and “shall nominate a lieutenant governor” subsequently.

They did not.

Instead, lawmakers and the people of Iowa left intact language referring to the lieutenant governor as “performing the duties pertaining to the office of governor,” and stating that the Iowa Senate president (not a new hand-picked lieutenant governor) would be next in line for that job, should the lieutenant governor “become incapable” for any reason.

Reynolds told WHO-TV’s Dave Price last month that she wants to choose a lieutenant governor who will be her full “partner” in government and join the Republican ticket in 2018. Naturally, she would prefer to elevate her future running mate’s stature and name recognition by having him or her spend the next year representing the administration at ribbon-cuttings and other official events around Iowa, at the expense of taxpayers rather than the Reynolds campaign.

Political expediency should not influence how our state’s leaders interpret the constitution.

I look forward to reading Attorney General Tom Miller’s response to State Senator David Johnson, who has asked for answers to nine questions about the succession. You can find the full text of Johnson’s letter here.

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