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If the electoral college fails to select a majority candidate for President, the US House decides who becomes President, voting by state blocks.

But what if the House simply... doesn't? If the Senate can refuse to fill a seat on the Supreme Court, can the House refuse to fill the Presidency?

In which case, upon the end of term of the present administration, does the Speaker of the House automatically succeed to the Presidency instead? And since the Speaker doesn't actually have to be an elected member of the House, can the US Congress in this circumstance theoretically make any qualified person they want President?

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  • Why would the House need to go through the weird "refusal" process you mention, when they'd be free to select anyone they want from the get-go?
    – T.E.D.
    Commented Jul 27, 2016 at 18:43
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    @T.E.D. The House can't select anyone they want. They have to pick from people who got electoral votes.
    – Stephen Collings
    Commented Jul 27, 2016 at 18:54
  • An interesting question, technically, but the premise is a bit flawed. The Senate might refuse to act on filling a vacancy, but not because they don't want it filled, but because they don't want the chosen appointee from a political adversary to hold the position. You'll note they aren't talking about leaving that seat vacant, now that their guy in in the White House. So, while it is possible, why would a party that controls the House balk at hand-picking the President who would be one of "their" people?
    – PoloHoleSet
    Commented Feb 15, 2017 at 23:06

2 Answers 2

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Turns out the 20th Amendment actually provides for this:

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

So it looks like Congress could indeed just pick someone as "acting" POTUS for the next 4 years, if it felt like it. That would require an EC deadlock for both President and Vice President though. The fall-back selection for VP happens in the Senate, not in the House, so the Senate would have to be (un)cooperating as well.

Now realistically the only way an Electoral College deadlock could happen is if there were 3 or more regional candidates. I don't believe that has happened since the 1950's and 60's, and even then one of the 3 had enough EC votes to win anyway.

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  • Congress cannot "just pick" someone when there is no president or vice president. They must provide a mechanism "by law," and they cannot enact a law when the presidency is vacant. Rather, they have to enact the ,aw beforehand (which they have done) and then follow it (which means that the speaker becomes acting president upon resigning from the house, if she is willing to resign; otherwise, the next person in the line of succession who is willing to resign becomes acting president).
    – phoog
    Commented Nov 20, 2021 at 12:54
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In which case, upon the end of term of the present administration, does the Speaker of the House automatically succeed to the Presidency instead?

No. The Vice-President (VP) would become President before the Speaker of the House. Note that the Senate chooses the VP before the House votes.

If the Senate can refuse to fill a seat on the Supreme Court, can the House refuse to fill the Presidency?

The Senate can't refuse to fill a seat on the Supreme Court. The Senate has no power to fill a seat on the Supreme Court. Their only power is to consent to the President filling such a seat. They can of course refuse such consent, otherwise there would be no need to ask them for consent.

And since the Speaker doesn't actually have to be an elected member of the House,

That's a possible interpretation of the law but has never been tested. All Speakers have been members of the House.

In theory, I guess that the House and Senate could manage this. However, it would be difficult for them to argue that the President picked in this way had been picked legitimately. People could reject presidential decisions on the basis of not having a legitimate president.

It's also not clear that the House has the right to move on to other business before choosing the President. And of course if there's no legitimate president, then there's no one to whom to send bills for signature. So Congress couldn't pass laws.

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  • Well, Congress could pass bills, wait ten days for them to be automatically vetoed by the non-existent President, then override the veto...
    – Stephen Collings
    Commented Jul 27, 2016 at 18:43
  • Good point about the Senate selecting the VP, I'd forgotten that.
    – Stephen Collings
    Commented Jul 27, 2016 at 18:43
  • @StephenCollings - To override a veto you'd need 2/3rds vote in both chambers. No party (dodging the issue of if there are actually 2 or 3 parties in the House right now) has that big of a majority currently.
    – T.E.D.
    Commented Jul 27, 2016 at 18:53
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    Bills aren't automatically vetoed. If there was a president, then they could deliver the bill and wait ten days. At that point, the bill is passed if Congress is in session. However, note that this requires them to deliver the bill to the president. No president means no delivery. No delivery means that the ten days never starts.
    – Brythan
    Commented Jul 28, 2016 at 3:18
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    "Note that the Senate chooses the VP before the House votes." Does it? The Constitution (12th Amendment) say that if nobody gets a majority of EVs, then "the House of Representatives shall choose immediately" the President. The word "immediately" is not present in the Senate/VP section, which occurs also later in the document. Is there a law on the topic? I've looked and couldn't find one.
    – dcsohl
    Commented Jul 28, 2016 at 17:24

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