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According to The New York Times, the Trump Administration is not currently planning to invoke the 25th Amendment and make Pence Acting President. But let's suppose they did.

Currently, the Senate is split 53-47, which is rather close, and Martha McSally stands a fair chance of losing her seat in November (as an appointee, she is not entitled to sit out the lame duck session if she loses the race), which could bring that number down to 52-48. Additionally, two Republican senators (Lisa Murkowski and Susan Collins) will vote against confirming Amy Coney Barrett, so it's possible this vote will be deadlocked 50-50.

If Pence is Acting President, and the Senate deadlocks, can he still break the tie, or does the vote fail?

(It's fairly obvious that if Trump dies and Pence becomes the for real President, he would not be Vice President any more and could not break ties. So this is specifically about the title of Acting President.)

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It's unclear. There is an interesting twist based on the US Constitution, Article I, Section 2, Clause 5, which says:

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of the President of the United States.

Here, it says that the Senate chooses a President pro tempore, for when the Vice President (who is President of the Senate) is absent, or when he is Acting President. The way this is worded seems to imply that when the VP is Acting President, the President pro tempore presides over the Senate (similar to when the VP is absent), which seems to imply that the VP cannot preside over the Senate when he is Acting President. If he cannot preside over the Senate, then I think he cannot break ties.

However, this clause does not clearly say that the Vice President cannot preside over the Senate when he is Acting President; nor does it say that the Vice President cannot vote to break ties during this time. (Perhaps the Vice President can argue that, yes, the Senate has a President pro tempore, but he (the VP) can still preside if he wants to.)

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  • I wonder whether there's anything on this in the senate rules. I don't have time to wade through them myself.
    – phoog
    Oct 6 '20 at 18:19
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EDIT: This answer is probably incorrect, given Article I, Section 3 which has subsequently been pointed out to me.

Probably yes, provided that the Acting President is the Vice President and not anyone else in the Presidential Line of Succession.

Nothing in the 25th Amendment indicates that a vacancy arises in the Vice Presidency when he becomes Acting President. It would therefore most likely be case that the Vice President would have the same powers and duties as he had before becoming Acting President, including casting the tie-breaking vote in the Senate.

Supplementary edit: The Presidential Succession Act of 1947 stipulates that the Speaker of the House would have to resign her position, and her seat in the House, before becoming Acting President. The Act has similar language for the President Pro Tempore of the Senate, and the various Cabinet Secretaries. There is no such language, neither in the Amendment nor in the Act, that makes such a stipulation for the Vice President.

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  • 2
    I have quite recently heard the opposite. Since the VP office is vacant, there is no Vice President. If the Acting President were Nancy Pelosi do you propose that she could still function as Speaker while serving as AP? Oct 5 '20 at 3:33
  • 4
    @RossPresser If the VP office was deemed vacant, the acting president could presumably appoint his own vice president. Oct 5 '20 at 6:11
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    @RossPresser: As a case in point regarding the VP, the VP has actually acted as President several times in the last several decades, by the President voluntarily invoking section 3 of the 25th Amendment during medical procedures: once with George HW Bush during the Reagan administration, and twice with Dick Cheney during the George W Bush administration. No one has suggested that the VP office was vacant during those times, and the VP did not need to somehow be reappointed to his office afterwards to continue being VP.
    – user102008
    Oct 5 '20 at 17:32
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    @RossPresser Re Pelosi, the answer is no, because the Presidential Succession Act specifically indicates that she would have to resign from the Speakership and from the House before she can be Acting President. There is similar language for everyone else in the line of succession, apart from the Vice President.
    – Joe C
    Oct 5 '20 at 19:30
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    @JoeC: While I was watching this YouTube video, my attention was drawn to this line in Article I Section 3 of the Constitution: "The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." You may want to update your answer in light of that.
    – Kevin
    Oct 5 '20 at 23:50

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