Can Bill Clinton or George W. Bush become President again? [edited title]

[That Don Guy]

The thread about what would happen if somebody were to discover in a middle of a President's term that the President wasn't Constitutionally qualified reminded me of an on-again, off-again discussion I have been having with various people over the years.

Bill Clinton and George H.W. Bush cannot be elected President again, under the 22nd Amendment. However, can they become President through other means - mainly, being Vice-President when the President dies during a term?

Most people I talk to about this use the following logic:
(a) "According to the 12th Amendment, you have to be Constitutionally eligible to be President in order to be Vice-President" - I agree with this;
(b) "According to the 22nd Amendment, no one who has served two full terms as President can be President again, so they are not Constitutionally eligible to be President, and therefore not eligible to be Vice-President" - here, I disagree, as the first part of the 22nd Amendment reads, "No person shall be elected to the office of the President more than twice." It says nothing about becoming President in other ways.

Some people have an interesting interpretation of another part of the 22nd Amendment: "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." Does this mean that if, say, Bill Clinton were to be VP and then President with more than two years left in the President's term, then, after two years, he would be ineligible to be President as otherwise he would violate the clause where you can't be elected more than once if you serve two years or more of another President's term? It doesn't say "subsequently" elected - just "elected".

[mlees]

Ummm... George H W Bush was "Bush the Elder", and elected to the Presidency only once (Jan 20 1989 - 1993). Therefore, he is eligible for a second crack at the job.

Perhaps you meant Bush II?

[That Don Guy]

Originally Posted by mlees

Ummm... George H W Bush was "Bush the Elder", and elected to the Presidency only once (Jan 20 1989 - 1993). Therefore, he is eligible for a second crack at the job.

Perhaps you meant Bush II?

Ummm...yes. Yes, I did.

[al27052]

Why would either one want the job again? They make plenty of money on the lecture circuit, and can take a day, week, or month off anytime they want.

But more seriously, I think the simplest way for one of them to become president again would be the way that Gerald Ford did. I imagine there'd be a SCOTUS decision right quick on the Constitutionality of them even running for vice-president, if they ever were asked to be a nominee's running mate, which would create too much of a liability for the GOP or Democrats, depending. You don't want your campaign derailed by the possibility that the running mate isn't legally able to take office. ROFL

[Dewey Finn]

Originally Posted by That Don Guy

Some people have an interesting interpretation of another part of the 22nd Amendment: "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." Does this mean that if, say, Bill Clinton were to be VP and then President with more than two years left in the President's term, then, after two years, he would be ineligible to be President as otherwise he would violate the clause where you can't be elected more than once if you serve two years or more of another President's term? It doesn't say "subsequently" elected - just "elected".

I believe that one cannot be vice president unless one is qualified to be president. So that someone under the age of 35 or not a native-born citizen can serve as vice president. Similarly, neither Bill Clinton nor GWB could serve as vice president.

[Czarcasm]

I do believe that one of the qualifications of the Vice Presidency is that the candidate must be currently qualified to be President. Neither of the to ex-Presidents mentioned in the OP qualify.

[Bricker]

Originally Posted by Dewey Finn

I believe that one cannot be vice president unless one is qualified to be president. So that someone under the age of 35 or not a native-born citizen can serve as vice president. Similarly, neither Bill Clinton nor GWB could serve as vice president.

The OP is drawing the distinction between being elected President, and becoming President.

He's saying that while Clinton cannot be elected President, no provision of law prevents him from becoming President via the 25th Amendment.

If the VP qualification business freaks you out, just substitute Clinton running for the House, being elected, and then having the House elect him Speaker, followed shortly by the simultaneous tragic deaths of the Prez and VP.

[Dewey Finn]

Never mind.

[mlees]

Originally Posted by Bricker

If the VP qualification business freaks you out, just substitute Clinton running for the House, being elected, and then having the House elect him Speaker, followed shortly by the simultaneous tragic deaths of the Prez and VP.

Hooo boy. And you think the 9/11 Truthers are annoying.

Wait until the CT'ers start in on that! Ol' Wild Bill will have a secret academy of ninja assasins, all just so he could get back into the Whitehouse.

[Czarcasm]

The current Presidential Succession Act.

edited to add:

(d)(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.

(bolding mine)-This could be taken to mean that anyone in line for the presidency must fulfill the requirements before assuming the office.

[BigT]

Originally Posted by Bricker

The OP is drawing the distinction between being elected President, and becoming President.

He's saying that while Clinton cannot be elected President, no provision of law prevents him from becoming President via the 25th Amendment.

If the VP qualification business freaks you out, just substitute Clinton running for the House, being elected, and then having the House elect him Speaker, followed shortly by the simultaneous tragic deaths of the Prez and VP.

Can't the House technically appoint anyone as Speaker, even a non-congressperson?

[hajario]

Originally Posted by BigT

Can't the House technically appoint anyone as Speaker, even a non-congressperson?

Maybe but he still couldn't become POTUS again. If the Prez and the VP died, it would skip over him if he were Speaker.

[Bryan Ekers]

Originally Posted by Czarcasm

The current Presidential Succession Act.

edited to addbolding mine)-This could be taken to mean that anyone in line for the presidency must fulfill the requirements before assuming the office.

I recall a discussion a few years back that Madeline Albright (ostensibly fourth in the line of succession when she was Secretary of State) would be passed over by virtue of being a naturalized citizen. The idea of line-skips is not a new one.

So short of a repeal or modification of the 22nd.... no. Bill Clinton and Bush43 will not be presidents again.

[drewtwo99]

You all are ignoring what Bricker and the OP clearly pointed out. There is a difference between being barred from being ELECTED VP or POTUS, and simply becoming POTUS by succession law.

My take on the argument is that Bill Clinton would technically be able to become president again by succession, but that the supreme court would probably decide against it. The spirit of the amendment was to prevent it, not just prevent elections.

[mlees]

Shall we coin the term "Pulling a Putin"?

Nah. Never mind.

[Czarcasm]

Originally Posted by drewtwo99

You all are ignoring what Bricker and the OP clearly pointed out. There is a difference between being barred from being ELECTED VP or POTUS, and simply becoming POTUS by succession law.

My take on the argument is that Bill Clinton would technically be able to become president again by succession, but that the supreme court would probably decide against it. The spirit of the amendment was to prevent it, not just prevent elections.

Not ignoring anything-see post #10. To be in the line of succession, the candidate must be fully qualified to become president-neither of them qualify any more.

[magnusblitz]

Very interesting question. I bet someone like Scalia could write a very long, detailed opinion on the meaning of the word "eligble" in the 12th Amendment and "qualify" in the Succession Act. Seems to me that's really what the issue boils down to - if to be "eligble/qualify" for President includes being electable or just the other requirements (natural-born citizen/35 years old). And I don't think there's a surefire argument for either side - seems to be the sort of thing I could see the SCOTUS ruling either way on.

[That Don Guy]

Originally Posted by Czarcasm

Not ignoring anything-see post #10. To be in the line of succession, the candidate must be fully qualified to become president-neither of them qualify any more.

On the contrary - the entire point of my starting this thread is that there is nothing in the Constitutition that says they aren't qualified to become President again - they just can't be elected President again. The law in Post #10 says nothing to contradict this - it just says that if you don't meet the qualifications to be President, then you can't be President.

The "qualifications" for President are, 35 years old or older, a natual-born citizen, and a resident of the USA for at least the past 14 years. Both Bill Clinton and GWB (almost said GHWB again...) meet these qualifications.

[Marley23]

I've edited the thread title to show the OP was talking about George W. Bush, not George H. W. Bush.

[Bryan Ekers]

Well, if you get enough people on board willing to ignore the obvious constitutional intent, sure, Clinton and Bush43 could be president again. Schwarzenegger could be president. I could be president.

[That Don Guy]

Originally Posted by Bryan Ekers

Well, if you get enough people on board willing to ignore the obvious constitutional intent, sure, Clinton and Bush43 could be president again. Schwarzenegger could be president. I could be president.

Not right now, Schwarzenegger can't - there is a specific provision in the Constitution that says he cannot. My entire point is that, going by a strict reading, you cannot say the same about Clinton or GWB - if they wanted an outright ban, then why didn't they put it that way in the 22nd Amendment, rather than specifically saying "elected" multiple times?

Besides - the 22nd Amendment "means" whatever five or more of the Supreme Court justices at the time say it means.

[Czarcasm]

Once again, if they are not qualified to run for President, they are not qualified to be appointed for President. The link I provided, and the boldened part of the quote I provided, specifically states that they must first qualify to properly be in the line of succession.

[Little Nemo]

The issue has never come before a court because nobody's ever tried it. But I think any lawyer would tell you which way a court decision would go.

The judges would rule that being able to be elected is part of what makes you eligible to be President. So a person who is barred from being elected President (under the 22nd Amendment) is constitutionally ineligible to be Vice President (under the 12th Amendment). Nor could a Speaker or cabinet official become President under the terms of the 25th Amendment for the same reason.

I'll also assume (although I don't think this is as certain) that a court would rule that if the Electoral College couldn't reach a majority and the members of the House and Senate selected the President and Vice President, then that would qualify as an election. So you couldn't backdoor in a two-term candidate through Congress. The same principle would prevent the President and Congress from appointing a two-termer to fill a Vice Presidential vacancy.

[Little Nemo]

Originally Posted by That Don Guy

Not right now, Schwarzenegger can't - there is a specific provision in the Constitution that says he cannot. My entire point is that, going by a strict reading, you cannot say the same about Clinton or GWB - if they wanted an outright ban, then why didn't they put it that way in the 22nd Amendment, rather than specifically saying "elected" multiple times?

Because the people writing an amendment can't think of every crazy scenario that somebody might invent.

For example, there's nothing in the Constitution that explicitly says the President has to be alive. Does that mean we could elect Abraham Lincoln President again? Nor does the Constitution say the President has to be human. So could we elect a dog President?

To answer questions like this, we have a court system that is empowered to interpret what the Constitution means. And as I posted above, the courts would say that being unable to be elected President makes you ineligible to be President.

[Bryan Ekers]

Originally Posted by That Don Guy

Not right now, Schwarzenegger can't - there is a specific provision in the Constitution that says he cannot.

But get enough well-placed Americans to say that his "spirit" is that of a born American, and ta-da!

[Cliffy]

I am a lawyer, and I disagree.

Lot of unjustified fiat in this thread. We must, as always, look to the text, which nobody but the OP (and Bricker) have done.

Amendment 22: "No person shall be elected to the office of the President more than twice..." Note use of the word "elected." There is nothing in this text restricting who can serve as president.

Amendment 12: "...But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." So, Yakov Smirnov (naturalized), Robert Mugabe (non-citizen), and my sister (too young) can't be VP, certainly. But Bill Clinton? Certainly ineligible to be elected president. But is he ineligible "to the office" of president? The 22d Amendment doesn't prohibit it, as we've seen above. I see nothing in the text here that mandates a different conclusion, although admittedly it's not inarguable.

This disposes of Czarcasm's objection -- if the Presidential Succession Act's language about "failure to qualify" doesn't apply if, as my analysis suggests, a two-term president is unqualified for the office, even though he is unqualified for the ballot.

--Cliffy

[Cliffy]

Originally Posted by Little Nemo

Because the people writing an amendment can't think of every crazy scenario that somebody might invent.

For example, there's nothing in the Constitution that explicitly says the President has to be alive. Does that mean we could elect Abraham Lincoln President again? Nor does the Constitution say the President has to be human. So could we elect a dog President?

To answer questions like this, we have a court system that is empowered to interpret what the Constitution means. And as I posted above, the courts would say that being unable to be elected President makes you ineligible to be President.

Absurd. The Constitution does say that the president must be a citizen. Words have meanings, and citizens are humans, not dogs. Your parade of horribles simply isn't a possible reductio.

--Cliffy

[TriPolar]

Couldn't we just repeal the 22nd with a new amendment? I think we should, but that's another thread altogether.

[Little Nemo]

Originally Posted by Cliffy

Absurd. The Constitution does say that the president must be a citizen. Words have meanings, and citizens are humans, not dogs. Your parade of horribles simply isn't a possible reductio.

--Cliffy

Okay, the Constitution says "all persons born in the United States are citizens of the United States".

So now show me where it says that only a human being can be legally considered as a person. You won't find it, of course, because it isn't true. As we've seen non-human entities like corporations are legally defined as people. It's right there in the very first section of the US Code. But while there's a whole list of things which are considered people: homo sapiens, corporations, companies, associations, firms, partnerships, societies, joint stock companies, and individuals - the list doesn't say it's complete.

Now I'd argue that it's obvious that a dog isn't a person. But you're arguing that we have to "look at the text". So show me the text in the Constitution where it says a dog isn't a person.

[Miller]

Didn't we more or less have a situation like this when Madelaine Albright was Secretary of Defense? She wasn't born in the US, so she wasn't eligible for the office of President, despite being sixth in the line of succession. IIRC, it was understood that, should it come to it, the succession would skip her and go to the Attorney General. I'd imagine that, if a VP were somehow elected who was ineligible for the office, the VP would similarly be skipped if the president couldn't serve. Admittedly, this would render the office of vice president even more irrelevant than usual (a handy trick in and of itself) but I don't think it would present any sort of constitutional crisis.

[mlees]

Secretary of State.

[Little Nemo]

Originally Posted by Miller

Didn't we more or less have a situation like this when Madelaine Albright was Secretary of Defense? She wasn't born in the US, so she wasn't eligible for the office of President, despite being sixth in the line of succession. IIRC, it was understood that, should it come to it, the succession would skip her and go to the Attorney General. I'd imagine that, if a VP were somehow elected who was ineligible for the office, the VP would similarly be skipped if the president couldn't serve. Admittedly, this would render the office of vice president even more irrelevant than usual (a handy trick in and of itself) but I don't think it would present any sort of constitutional crisis.

No, there's no legal requirement for a Secretary of State to be eligible to the Presidency as a condition of their office. So they just get skipped over.

But the Constitution says that one of the conditions of being Vice President is you have to be eligible to be President.

[Miller]

Originally Posted by mlees

Secretary of State.

[Bricker]

Originally Posted by Little Nemo

No, there's no legal requirement for a Secretary of State to be eligible to the Presidency as a condition of their office. So they just get skipped over.

But the Constitution says that one of the conditions of being Vice President is you have to be eligible to be President.

Is there any difference between these two sentences:

(A) Kevin is eligible to become President.

(B) Kevin is eligible to be elected President.

[Bricker]

Originally Posted by Little Nemo

Okay, the Constitution says "all persons born in the United States are citizens of the United States".

So now show me where it says that only a human being can be legally considered as a person. You won't find it, of course, because it isn't true. As we've seen non-human entities like corporations are legally defined as people. It's right there in the very first section of the US Code. But while there's a whole list of things which are considered people: homo sapiens, corporations, companies, associations, firms, partnerships, societies, joint stock companies, and individuals - the list doesn't say it's complete.

Now I'd argue that it's obvious that a dog isn't a person. But you're arguing that we have to "look at the text". So show me the text in the Constitution where it says a dog isn't a person.

If the text does not answer the question, then it's resolved according to the rules of statutory construction. If a court, employing traditional tools of statutory construction, ascertains that a particular Constitutional provision is the law, then it is the law and must be given effect.

See, e. g., a zillion cases, from FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27 (1981); to Webster v. Luther, 163 U. S. 331 (1896).

Guess what the rules of statutory construction say about your idea that a dog is a person?

[Czarcasm]

Originally Posted by Bricker

Guess what the rules of statutory construction say about your idea that a dog is a person?

That dog don't hunt.

[JRDelirious]

From where I sit (IANAL) : text says "all persons born..." not "all persons born or established" so its scope would be applicable only to a "natural person". Under The Law, natural persons are individual human beings.




The larger thought experiment here seems to be an extension of the debate over absolute literal textualism v. original intent v. living document in reading the relevant language in the Constitution. For many it would seem obvious that the drafters of the relevant articles and amendments meant that nobody is ever again to hold the office of President for longer than 10 years total, no matter what the means of accession, and that you are do not place someone in the line of succession who could potentially run afoul of that purpose. But it does not actually say that in so many words.

Heck, when the first POTUS vacancy happened there were people arguing the Constitution wasn't explicit in that the VP ascended to the full rank of President. It took Tyler's actual accession and exercise of the office to have that cleared up. The Constitution is not a Law Code or a Rules Act that has to contemplate every possible circumstance, just set up a general framework for the specific details to belegislated or regulated.

[Engineer Dude]

Originally Posted by JRDelirious

For many it would seem obvious that the drafters of the relevant articles and amendments meant that nobody is ever again to hold the office of President for longer than 10 years total, no matter what the means of accession, and that you are do not place someone in the line of succession who could potentially run afoul of that purpose. But it does not actually say that in so many words.

It's interesting that you bring up the 10 years rule. That rule was, I assume, to allow presidents such as Lyndon Johnson, who had suceeded to the Presidency more than halfway through the term, to be able to hold office for two more full terms after that term ended.

The other rule is, of course, that a person cannot be elected to the Presidency more than twice.

But what if, say Obama, were re-elected in 2012 and more than halfway through his second term, Joe Biden was somehow outed? Would Obama be able to nominate Bill Clinton as his Vice President, the idea being that Bill Clinton would still be under his 10 years if suceeding to the Presidency for the remainder of the term?

[Cliffy]

Originally Posted by Engineer Dude

But what if, say Obama, were re-elected in 2012 and more than halfway through his second term, Joe Biden was somehow outed? Would Obama be able to nominate Bill Clinton as his Vice President, the idea being that Bill Clinton would still be under his 10 years if suceeding to the Presidency for the remainder of the term?

The question would remain same as it is in the thread -- the "10 year rule" is shorthand. The actual parameters of what's allowed is the text, which does explicitly require occupants of the office of VP to be qualified for the presidency, which brings us back to the current subject of debate -- "is qualification for the office different from qualification for election to the office?"

--Cliffy

[Little Nemo]

Originally Posted by Bricker

If the text does not answer the question, then it's resolved according to the rules of statutory construction. If a court, employing traditional tools of statutory construction, ascertains that a particular Constitutional provision is the law, then it is the law and must be given effect.

See, e. g., a zillion cases, from FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27 (1981); to Webster v. Luther, 163 U. S. 331 (1896).

Guess what the rules of statutory construction say about your idea that a dog is a person?

Are you expecting an argument from me? I'm in full agreement with you. If I were a judge I'd say it's obvious that the legal meaning of a person doesn't include dogs.

I was arguing against the people who were insisting on a "strict reading" and saying we can't assume anything that isn't explicitly stated.