Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, July 29, 2008

Question for our Political / Legal Experts

Could Bill Clinton become Vice President? I had assumed the answer had to be "no" because the 12th Amendment says one must be eligible to be President in order to be Vice President, and the 22nd Amendment says Presidents cannot serve more than two terms. Except it has been pointed out that the 22nd Amendment does not quite say that. On the face of it, the 22nd Amendment appears to say that one may only be elected President twice. The operative sentence is,

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

So what gives? The intent of the amendment was clearly to bar three terms, but the text is far from watertight. Any thoughts?


USWest said...

Well, under the dominate thinking of the current Supreme Court (you can't read beyond the text according to Scalia) then it would be permissable, even though the intent is clear. I am being snide, however, because I think Scalia and his ilk should be disbarred- they make an good excuse to put term limits on Supreme Court Justices.

The Law Talking Guy said...

I really dislike this argument about Bill Clinton (floated many times in the last 8 years) because it's based on flawed legal reasoning of the sort glommed onto by tax protestors.

The 22nd Amendment makes it clear that no person shall be elected President more than twice.

The key is the 12th amendment. First, you must be elected Vice President either by the procedure in the 12th amendment or in the 25th Amendment. It says that "No person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States."

That phrasing should send a red light. What does that mean "eligible to the office?" Why not eligible for the office or eligible to be President" Well, in the 18th century, the word "eligible" was used rather than the modern word "electable." From the Latin eligere. Replace "eligible" with "electable" and the prohibition becomes watertight. Older versions of Black's Law Dictionary make it clear that "eligible" meant at law both the modern sense of "possessing the requisite characteristics" and "capable of election."

This mimics the phrase in the original (unamended) Article II that says that :"no person except a natural born Citizen shall be eligible to the Office of President." This comes right after specifying the method of election..

Note that "eligibility" in the modern sense is sometimes phrased differently in the constitution. Art. I sec.3 says "no person shall be a Senator who shall not have attained the age of thirty years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of the State for which he shall be chosen."

Note that "shall be" rather than "shall be eligible" is used. Note also that "choose" [or "chuse"]and "elect" are synonyms. That's not actually because Senators were not originally elected in the modern sense, but "chosen by the Legislature" of the state. The same language is used for reprsentatives who are "chosen every second year by the People of the several states."

The idea that "eligibility" in the constitution refers ONLY to the 14-year-residence/natural born citizen/35 years old requirements of Article II section I is nonsense. Harrumph.

Dr. Strangelove said...

LTG... So you are saying the 22th Amendment means one cannot be elected Vice-President if one could not be elected President. I see. That makes sense.

Does this mean someone who could not be elected President could nevertheless become President via the 25th Amendment--which is not an election process, as I understand an election to be?

Raised By Republicans said...

"Does this mean someone who could not be elected President could nevertheless become President via the 25th Amendment--which is not an election process, as I understand an election to be?"

The only way that would work would be if a former President were to take an office that put them in the line of succession after VP.

Another interesting question is would we WANT Bill Clinton to be VP (or Secretary of State). I think the answer to that question is a resounding NO. It would make the power structures in the executive branch far too confusing which is never a good idea.

The Law Talking Guy said...

RBR, I believe you are incorrect. There is NO way that a former President could ever take the oath of office for the presidency again, if he is ineligible to serve under the terms of the 22nd amendment, period. The line of succession is established by Congress as a law under the auspices of the 20th amendment, but the statute on succession cannot and does not nullify the provision that a person must meet all the qualifications of the office and be electable to the presidency in order to serve as or be elected to be president or vice president. When Madeleine Albright was SecState, she was not in the line of succession b/c she was not a natural born citizen. Bill Clinton would not be in the line of succession either if SecState because he is disqualified by the express terms of the 22nd Amendment from ever holding office as President again. He is not eligible again in any sense.

Raised By Republicans said...

I wasn't suggesting it would be legal I was only speculating as to the only possible logic that would support Dr. S.'s speculation.

Dr. S. where does this come from? Are there Clinton fans out there floating this at cocktail parties or something?

The Law Talking Guy said...

This crap was floated as early as 2000. It keeps getting raised by pundits who like the what-if chatter. I doubt Clintonites in particular are hawking it this time around. Bill most definitely would not want such a job.

The Law Talking Guy said...

Another misconception is that Pres and VP cannot be from the same state. They can. But members of the electoral college are required to vote for at least one person (VP or Pres) who is not from the same state as the elector. Thus, in 2000, Texan electors should not have been able to vote for both Bush and Cheney, since both were Texans. This provision has been read into almost a dead letter by the apparent ability to change one's residence legally on a moment's notice.

Dr. Strangelove said...

RbR, I just was browsing on the web and stumbled upon post pointing out that the text of the 22nd amendment does not technically bar a President from serving a third term--rather it bars someone from being elected to the Presidency a third time. So at first blush it seems that if there were a path to the Presidency other than "election", that path might circumvent the 22nd amendment.

But LTG makes a convincing case that the word "elected" in the 22nd amendment (and throughout the constitution) is always used in the most general sense--so in fact the 22nd amendment says plainly that one cannot assume the office President a third time, by any means. I'm happy with that.

The Law Talking Guy said...

DR.S - that's the nub of the argument, I know. The 22nd amendment is quite clear that if you've "served" less than 2 years of a term as president, you may be elected twice (and therefore serve up to 10 years). So it plainly contemplates a limit on service. I don't know what these people are huffing, but please don't take a hit. The Presidential Succession Act (3 USC 19) repeats, for all the world to see, that the succession line "shall apply only to such officers as are eligible to the office of President under the Constitution." So the text of the succession statute repeats what should be obvious from the constitution.