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  #1  
Old 03-04-2004, 09:20 PM
whatami whatami is offline
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Could Kerry choose Clinton as a running mate.

I believe this subject was brought up in 2000 when Gore ran against Bush, but I don't remember any answer. I thought maybe someone would have a definitive answer. I'm just confused.

Section 1 of the 22nd Amendment -
Quote:
Section 1. 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. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
So he couldn't be elected. But could he becomes VP?

(and please let's try to stick to facts and not get into the politics)
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  #2  
Old 03-04-2004, 09:28 PM
Earl Snake-Hips Tucker Earl Snake-Hips Tucker is online now
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Amendment XII:

Quote:
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Clinton is ineligible to become president again.

http://www.law.cornell.edu/constitut...ndmentxii.html
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  #3  
Old 03-04-2004, 10:13 PM
zev_steinhardt zev_steinhardt is offline
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Quote:
Originally Posted by Earl Snake-Hips Tucker
Amendment XII:



Clinton is ineligible to become president again.

http://www.law.cornell.edu/constitut...ndmentxii.html
I often thought that too, but now I'm not so certain.

You say that Clinton is ineligible, probably based on the 22nd ammendment which states (bolding mine):
Quote:
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.
A strict reading of that ammendment says that Clinton is ineligible to be elected to the Presidency, but can serve if he gets there via another route. While Clinton may be ineligible for election, he still meets the criteria to be eligible for the office (35 years, 14 year resident, natural born citizen).

Of course, in the end, it would come down to a SCOTUS decision on what the 22nd really means.

Zev Steinhardt
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  #4  
Old 03-04-2004, 10:19 PM
Jplacer Jplacer is offline
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From an AP article

According to Mark Tushnet, a constitutional law professor at Georgetown University Law Center, it is possible for Bill Clinton to become vice-president.

The 22nd Amendment to the Constitution imposes a two-term limit on presiden-tial candidates, but imposes no limit on the vice presidency. As vice president, however, Clinton could succeed the president upon death, incapacity, impeach-ment or resignation and serve a third term.
That leads to the 12th Amendment, which states that "no person constitutionally ineligible to the office of president shall be eligible to that of Vice President of the United States."
Is the 22nd Amendment an "eligibility" requirement? Arguably not, says Tushnet. Article II of the Constitution defines who is eligible to be president as a natural born citizen, at least 35 years old, who has been a U.S. resident for at least 14 years. It says nothing about term limits.

But others might argue that permitting Clinton to run for vice president violates the spirit of the 22nd Amendment. The issue ultimately would be decided by the U.S. Supreme Court, which in 2000 resolved the disputed presidential election in President Bush's favor.
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  #5  
Old 03-05-2004, 01:28 AM
Chronos Chronos is online now
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Of course Clinton can be vice-president! It's just her husband who would be a problem .

But more seriously,
Quote:
Of course, in the end, it would come down to a SCOTUS decision on what the 22nd really means.
More likely it would come down to the voters. Even among those voters who favor the Democratic Party, it seems likely to me that a great many would consider this sort of shenanigan "cheating", and not vote for a Kerry-Clinton ticket on those grounds. Also of course, the politicians know this, and thus wouldn't try it in the first place.
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  #6  
Old 03-05-2004, 03:26 AM
aeropl aeropl is offline
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Has any president gone on to become a vice-president later in life?
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  #7  
Old 03-05-2004, 08:46 AM
zev_steinhardt zev_steinhardt is offline
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Quote:
Originally Posted by aeropl
Has any president gone on to become a vice-president later in life?
No. JQ Adams served in the House after he was president, Taylor was elected to (but died before he could serve) in the Confederate Senate and Taft was CJ of SCOTUS, but no president (even a one-termer) ever went on to serve as vice president later.

Zev Steinhardt
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  #8  
Old 03-05-2004, 08:58 AM
Mr. Moto Mr. Moto is online now
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Quote:
Originally Posted by zev_steinhardt
No. JQ Adams served in the House after he was president, Taylor was elected to (but died before he could serve) in the Confederate Senate and Taft was CJ of SCOTUS, but no president (even a one-termer) ever went on to serve as vice president later.

Zev Steinhardt
Actually, that would be John Tyler who was elected to the Confederate Senate.

Zachary Taylor, of course, died in office.
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  #9  
Old 03-05-2004, 09:17 AM
Acsenray Acsenray is offline
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Quote:
CJ of SCOTUS
Could we just agree to call it the U.S. Supreme Court instead of that ridiculous acronym? Puh-leez.
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  #10  
Old 03-05-2004, 09:24 AM
gleeb gleeb is offline
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Could we just agree to call it the U.S. Supreme Court instead of that ridiculous acronym? Puh-leez.
If you want to be excruciatingly correct, I believe the title of the office is Chief Justice of the United States of America.
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  #11  
Old 03-05-2004, 09:26 AM
gleeb gleeb is offline
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Could we just agree to call it the U.S. Supreme Court instead of that ridiculous acronym? Puh-leez.
If you want to be excruciatingly correct, I believe the title of the office is Chief Justice of the United States.
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  #12  
Old 03-05-2004, 10:43 AM
whatami whatami is offline
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So I guess the concensus is that there is no real rule of law on this yet? The amendment doesn't seem to actually say you can't, but I guess no one has ever tried before.

I guess we won't ever know...

Thanks!
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  #13  
Old 03-05-2004, 10:56 AM
Cliffy Cliffy is offline
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It's an open question, whatami, but I think that Tushnet's analysis is pretty sound -- I personally have never seen any strong argument to the contrary other than the naked policy appeal that Jplacer mentions, which is all well and good (and indeed, would probably sway much of the electorate, including me), but which, as a matter of constitutional analysis, is simply not in the text.

I doubt the Supreme Court would ever hear such a case, even if it were to happen. They don't like to address "political questions" like this, choosing to leave them to the electorate to decide.

--Cliffy
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  #14  
Old 03-05-2004, 11:24 AM
Little Nemo Little Nemo is offline
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It's amazing how people will construct the most unlikely scenarios to find a way that Bill Clinton could get back in the Oval Office and ignore the most obvious. Clinton cannot become President or Vice President under the Constitution as it now exists (Mark Tushnet should have his teaching credentials reviewed). But the Constitution can be amended. The 22nd Amendment could be revoked as the 18th was.
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  #15  
Old 03-05-2004, 11:26 AM
Jonathan Chance Jonathan Chance is offline
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Isn't the 12th Amendment the controlling one here?

The last line reads:
Quote:
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
So, since Bill is no longer eligible for the office of President he's not eligible for the VP slot.

Full text:

http://www.law.cornell.edu/constitut...ndmentxii.html
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  #16  
Old 03-05-2004, 11:32 AM
whatami whatami is offline
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Quote:
Originally Posted by Little Nemo
It's amazing how people will construct the most unlikely scenarios to find a way that Bill Clinton could get back in the Oval Office and ignore the most obvious. Clinton cannot become President or Vice President under the Constitution as it now exists (Mark Tushnet should have his teaching credentials reviewed). But the Constitution can be amended. The 22nd Amendment could be revoked as the 18th was.
I really don't care who Kerry's running mate is. I don't have any particular affection for Bill, but I'd heard someone talking about it and wondered on the legality.

I can see that this is not a yes/no question like I'd originally hoped. Perhaps this is more of a GD than a GQ now.
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  #17  
Old 03-05-2004, 11:34 AM
Acsenray Acsenray is offline
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Quote:
It's amazing how people will construct the most unlikely scenarios to find a way that Bill Clinton could get back in the Oval Office and ignore the most obvious. Clinton cannot become President or Vice President under the Constitution as it now exists (Mark Tushnet should have his teaching credentials reviewed). But the Constitution can be amended. The 22nd Amendment could be revoked as the 18th was.
Paranoid much? Neither Tushnet nor anyone else is trying to get Clinton back in the White House. Tushnet -- who happens to be a respected constitutional law scholar, by the way -- is merely pointing out that there does in fact exist an ambiguity in the text of the Constitution, which does not explicitly say that someone who is not eligible to be elected president is also not eligible to be president. Tushnet is constructing a legal argument based on valid constitutional principles. That his argument is most probably a loser is not lost on him and is not a negative reflection on his credentials.
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  #18  
Old 03-05-2004, 11:59 AM
beagledave beagledave is offline
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Quote:
Originally Posted by Jonathan Chance
So, since Bill is no longer eligible for the office of President he's not eligible for the VP slot.
He's not eligible to be elected president. He's other wise eligible (natural born, over 35..)

Stephen Gillers discusses this at the NY Times

Quote:
The first objection, the constitutional one, can be disposed of easily. The Constitution does not prevent Mr. Clinton from running for vice president. The 22nd Amendment, which became effective in 1951, begins: "No person shall be elected to the office of the president more than twice."

No problem. Bill Clinton would be running for vice president, not president. Scholars and judges can debate how loosely constitutional language should be interpreted, but one need not be a strict constructionist to find this language clear beyond dispute. Bill Clinton cannot be elected president, but nothing stops him from being elected vice president.

True, if Mr. Clinton were vice president he would be in line for the presidency. But Mr. Clinton would succeed Mr. Kerry not by election, which the amendment forbids, but through Article II, Section 1 of the Constitution, which provides that if a president dies, resigns or is removed from office, his powers "shall devolve on the vice president." The 22nd Amendment would not prevent this succession.
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  #19  
Old 03-05-2004, 01:25 PM
Cliffy Cliffy is offline
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You really know how to hurt a guy, Nemo -- did you just decide to post without reading the thread.

Make an argument as to why Clinton can't be reelected. Convince me, and I'll send you ten bucks. But I'm not worried.

Jonathan Chance, the 12th Amendment says nothing to this question. It says that a potential VP must be eligible for the office of President, but where in the Constitution does it say Clinton can't be president (as distinct from being elected president)?

--Cliffy
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  #20  
Old 03-05-2004, 01:53 PM
Colibri Colibri is online now
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Quote:
Originally Posted by Little Nemo
Clinton cannot become President or Vice President under the Constitution as it now exists (Mark Tushnet should have his teaching credentials reviewed).
And what, pray tell, are your credentials for this assertion? It should be obvious from the preceeding discussion that the Constitution says nothing definitive on the subject. If you think it does, please demonstrate it explicitly.

Whether or not it would be possible to exploit the ambiguity in the Consitution in this way is largely a political issue. Given a divided electorate, and the present composition of the Supreme Court, Clinton certainly could not take this route. However, given a two-term president of overwhelming popularity, and a compliant Supreme Court, it's not impossible that such a loophole could be exploited sometime in the future.
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  #21  
Old 03-05-2004, 04:17 PM
brianmelendez brianmelendez is offline
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I can see three possible views about whether a twice-elected president can become vice-president:

1. A twice-elected president is ineligible for the vice-presidency under any circumstances. The 22nd amendment makes him or her ineligible for election as president, so the 12th amendment makes him or her ineligible for election as vice-president. The 25th amendment, the only other route to the vice-presidency, is silent about eligibility but implicitly imports the eligibility requirements from the 12th and 22nd amendments. (To put it another way, the 22nd amendment means that being re-elected as president exhausts one's eligibility, not only for purposes of election but for all purposes.)

2. A twice-elected president is ineligible for the vice-presidency by election, but not necessarily by way of the 25th amendment. The 12th amendment's eligibility clause imports the 22nd amendment's limit on electability, but the 25th amendment does not involve an election, so a twice-elected former president can become vice-president if the incumbent president nominates and both houses of Congress confirm him or her.

3. A twice-elected president is eligible for the vice-presidency under any circumstances. The 22nd amendment's literal terms apply only to election as president, not to election as vice-president or to succession to the presidency.

Views 3 and 2 are more literal (that is, more textually defensible) than View 1, but Views 1 and 2 make more sense than View 3 in light of the 22nd amendment. The amendment says only that "[n]o person shall be elected," but surely its intent was to keep a demagogue (or any individual, for that matter) from monopolizing the executive branch indefinitely. If a twice-elected president is eligible for election as vice-president, and is then eligible for succession to the presidency, what would stop a popular term-limited president from running for vice-president on a ticket with a figurehead who will take office then immediately step aside? The constitutional gymnastics are a little more complicated, but the same policy question can arise in the case of a twice-elected president chosen as vice-president under the twenty-fifth amendment.

A statutory succession to the presidency under the Presidential Succession Act raises substantially the same issues, since the Act's provisions "apply only to such officers as are eligible to the office of President under the Constitution." 3 U.S.C. 19(e). (Interestingly, there was a book written about thirty years ago -- Line of Succession by Brian Garfield -- that deals with some of these issues. The vice-president and speaker are killed in a terrorist attack, the president-elect is kidnapped then killed, and the president pro tem is politically unacceptable to both political parties, so the defeated outgoing president schemes to amend the Succession Act so that he can stay in office. The book sidesteps the 22nd-amendment issue, though, because the outgoing president has served only one term.)

Short of a constitutional amendment or a court case, I suppose that there can be no definitive answer until somebody tries it.
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  #22  
Old 03-05-2004, 04:30 PM
Acsenray Acsenray is offline
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Quote:
but surely its intent was to keep a demagogue
Sez who? Did it really have any higher intent than to prevent another popular Democrat from being re-elected repeatedly in the manner that Roosevelt was? The fact that it might work against a demagogue seems to me to be an afterthought. And the fact that it might work against a Republican seems to me to have been overlooked. Hey, Ike's pretty popular! Hey the Gipper's all the rage! ... D'oh! Hoist by their own petard.
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  #23  
Old 03-05-2004, 08:31 PM
brianmelendez brianmelendez is offline
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Quote:
Originally Posted by acsenray
Sez who? Did it really have any higher intent than to prevent another popular Democrat from being re-elected repeatedly in the manner that Roosevelt was? The fact that it might work against a demagogue seems to me to be an afterthought. And the fact that it might work against a Republican seems to me to have been overlooked. Hey, Ike's pretty popular! Hey the Gipper's all the rage! ... D'oh! Hoist by their own petard.
Yes, F.D. Roosevelt's four terms largely prompted the 22nd amendment. But the contemporary debate over the amendment was never framed in terms of preventing another Roosevelt. The amendment was ratified by a broad, bipartisan coalition who agreed that the same individual holding so much power for so long was a bad thing.

As I wrote, the amendment's "intent was to keep a demagogue (or any individual, for that matter) from monopolizing the executive branch indefinitely." (acsenray left out the parenthesis.) The United States had just witnessed, in the preceding two decades, a demagogue rising to power in Germany, monopolizing the German government, and igniting a worldwide war. A similar phenomenon had occurred in Italy during the same period. And the primary American concern in international affairs while the 22nd amendment was being proposed and ratified was the spread of Communism, spearheaded by a Soviet dictator who -- while not a demagogue -- had effectively monopolized the machinery of the Soviet state.

The primary argument for the amendment, even among Democrats, was that an incumbent president enjoys so many political advantages that he (or she, theoretically) can almost get reelected by inertia. Some voters will vote for reelecting an incumbent president just because he or she is more comfortable and familiar than any challenger. The presidents who have run for reelection since the 22nd amendment was ratified have all won their party's nomination, and all but three (Ford, Carter, and Bush I) got reelected. And while consistency at the top may be a good thing, it naturally prevents turnover -- and thereby promotes stagnation and stifles innovation -- throughout the executive branch. It excludes from executive power not only the opposition party, but the factions within the president's own party who are out of the president's favor (which is partly why the amendment won such broad bipartisan support). The presidency changing hands every so often circulates fresh leadership, new ideas, and innovative approaches throughout the government. The process works in the long run because more viewpoints and more styles get aired, and hopefully the better ones take. Letting the same individual hold the presidency for too long, and letting that individual's appointees hold their jobs for just as long, squashes the impulses toward turnover and experimentation that ought to be a natural feature of the democratic process.
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  #24  
Old 03-05-2004, 11:10 PM
Little Nemo Little Nemo is offline
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To address some of the responses to my previous post:

Quote:
Paranoid much? Neither Tushnet nor anyone else is trying to get Clinton back in the White House. Tushnet -- who happens to be a respected constitutional law scholar, by the way -- is merely pointing out that there does in fact exist an ambiguity in the text of the Constitution, which does not explicitly say that someone who is not eligible to be elected president is also not eligible to be president. Tushnet is constructing a legal argument based on valid constitutional principles. That his argument is most probably a loser is not lost on him and is not a negative reflection on his credentials.
Paranoid not at all. I liked Clinton. Voted for him twice (and his wife). I might do so again if he were eligible.

But I probably was too hasty in judging Tushnet. I don't know him, but I'm sure his credentials are sound. So it's more likely he was running a line that he knew was pure bull to some AP reporter than that he honestly believes it's the likely case.

Quote:
You really know how to hurt a guy, Nemo -- did you just decide to post without reading the thread.

Make an argument as to why Clinton can't be reelected. Convince me, and I'll send you ten bucks. But I'm not worried.

Jonathan Chance, the 12th Amendment says nothing to this question. It says that a potential VP must be eligible for the office of President, but where in the Constitution does it say Clinton can't be president (as distinct from being elected president)?
How did I hurt anyone? All I said was that Clinton being elected Vice President was unlikely. Probably as unlikely as me seeing the ten dollars but I'll take a shot.

Keep in mind, the fact that something isn't explicitly allowed or prohibited in the Constitution doesn't mean that the Constitution doesn't address the issue. To give an example, burning a flag has been declared to a form of speech that is protected by the First Amendment of the Constitution, even though the language of that amendment says nothing about flag burning.

Tushnet and others is saying that it's somehow possible to assume an elective office without being elected to it. But I'm sure Tushnet is aware that ample precedent from outside the Constitution clarifies that this is impossible within the meaning of the Constitution. Precedent has established that being able to be elected to an office is one of the eligibility requirements of the office (although there are precedents that say the reverse isn't necessarily true).

So when the 22nd Amendment says Bill Clinton is ineligible to be elected President it means he is ineligible to be President. And the 12th Amendment says that because he is ineligible to be President, he can't be Vice President either. But on the plus side, he has a decent shot at being First Lady.

Quote:
And what, pray tell, are your credentials for this assertion? It should be obvious from the preceeding discussion that the Constitution says nothing definitive on the subject. If you think it does, please demonstrate it explicitly.
My credentials are my devastating wit and my boyish exuberance. In terms of resume, degrees, and publishing history, I am however bereft. If you want to dismiss what I write because of that, I guess I can't stop you.

Quote:
Short of a constitutional amendment or a court case, I suppose that there can be no definitive answer until somebody tries it.
And here's the heart of Tushnet's argument. The fact is that until the USSC explcitly rules on the issue, all of us can only theorize on what they might say. Granted, any half competent legal scholar can apply a little knowlege and guess the outcome to most cases, but it's not a precedent until the Supremes say it is. And at this point, they haven't ruled on the subject.

So consider this counter-argument: Using Tushnet's logic (as it was explained here) you could plausibly argue that Batman is eligible to be President. He's a natural born citizen, at least 35 years old, and has been a U.S. resident for at least 14 years. Article II says nothing about being a fictional character. So Constitutionally speaking Batman is eligible to run.

Which demonstrates the weakness of the argument. While the USSC has never explictly ruled that a fictional super-hero is ineligible to run for President, any examination of the precedent they would follow, says that they would if they ever ruled on the issue. And by the same token, if the USSC ever ruled on a two term President's ability to run for Vice President, any examination of the precedents they would follow says that they would rule him ineligible to run.
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  #25  
Old 03-07-2004, 12:02 PM
Alzarian Alzarian is offline
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President Ford back for two terms...

I just thought it was interesting to note that not only could former President Gerald Ford run for the Presidency again, but he could even run for re-election, and end up serving eight more years...

Not bloody likely, but possible...
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  #26  
Old 03-07-2004, 12:20 PM
casdave casdave is online now
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...I always thought that Batman was a charactor, not a person.
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  #27  
Old 03-07-2004, 01:06 PM
brianmelendez brianmelendez is offline
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Quote:
Originally Posted by Alzarian
I just thought it was interesting to note that not only could former President Gerald Ford run for the Presidency again, but he could even run for re-election, and end up serving eight more years...

Not bloody likely, but possible...
Sorry, nope. Ford took office in August 1974, and served until Jimm Carter's inauguration in January 1977. Two years plus five months. He can run again (been there, done that) for one more term, but not two.
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  #28  
Old 03-07-2004, 01:53 PM
Acsenray Acsenray is offline
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So it's more likely he was running a line that he knew was pure bull to some AP reporter
No, he was constructing a sound legal argument based on a genuine ambiguity in the text of the Constitution. There's a small difference between that and "a line that he knew was pure bull."
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  #29  
Old 03-08-2004, 11:46 AM
whatami whatami is offline
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Quote:
Originally Posted by Little Nemo
So consider this counter-argument: Using Tushnet's logic (as it was explained here) you could plausibly argue that Batman is eligible to be President. He's a natural born citizen, at least 35 years old, and has been a U.S. resident for at least 14 years. Article II says nothing about being a fictional character. So Constitutionally speaking Batman is eligible to run.
Except Batman is not a person. I guess though, if you can show me Batman with a copy of his birth certificate from either the US or that both his parents are US citizens, I might vote for him.
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  #30  
Old 03-08-2004, 02:31 PM
AV8R AV8R is offline
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Originally Posted by aeropl
Has any president gone on to become a vice-president later in life?
I think this almost happened with Gerald Ford.
To the best of my recollection, [how's that for a disclaimer], when Ronald Reagan was looking for a running mate, he interviewed former president Gerald Ford. Ford was considering it, but also was demanding a much bigger leadership role than most vice-presidents are given. Reagan didn't want to do that, so he picked Bush instead.
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  #31  
Old 03-08-2004, 03:41 PM
DSYoungEsq DSYoungEsq is online now
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A silly argument

The correct answer to the OP is: "we don't know." The strict language of the 22nd Amendment does not rule it out, having used the term "elected" rather than "hold" or "selected" or some other term that would indicate no possibility of becoming President. However, the intent of the amendment probably was to preclude anyone from returning to the office; the text of the resolution passed by Congress appears to so indicate. The Supreme Court has had no reason to rule on the meaning of the exclusion.

If they did, strict constructionists would argue that the term "elected" is quite specific, and that Congress could easily have used a more general term had it truly intended for a person to have no chance of being promoted to the office; one can make the argument that, in a time of crisis, the Congress may not have wanted to forestall someone who had served two terms and was in a later president's cabinet from being promoted under presidential succession laws. Those justices who focus more on intent rather than a strict reading of terms would try to construct the actual intent of the Amendment, and might well argue that the Amendment is meant to bar completely any return to office by someone who, like President Clinton, has held it for two terms.

All of it is pretty speculative, and for no real reason. No presidential candidate is going to attempt to nominate for Vice someone who has been President for two prior terms; it is a silly concept from a practical sense. It is much more likely that the former First Lady would be nominated. And, frankly, I can't imagine most Presidents wanting to get back in the Oval office after having been there eight years. It is a bit of a wearying job.
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  #32  
Old 03-08-2004, 06:26 PM
knarf knarf is offline
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If Clinton was eligible, and something happened to Kerry say in the first year of his term, could Clinton only take over for two years? Then what?
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  #33  
Old 03-09-2004, 07:54 PM
RTFirefly RTFirefly is offline
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knarf - if it was ruled that Clinton were eligible in the first place, there would appear to be no restriction on when he could succeed to the Presidency if the President should die, resign, or become incapacitated.

Quote:
Originally Posted by DSYoungEsq
And, frankly, I can't imagine most* Presidents wanting to get back in the Oval office after having been there eight years. It is a bit of a wearying job.
Neither can I, but I can imagine that Presidents elected to the office at a relatively young age might well want to return to the big time, once they'd had a term off to rest up.

I mean, Bill Clinton's about the same age as Kerry, and several years younger than Reagan when Reagan became President. He's in the prime of his life, he's in good shape, but there are no more mountains for him to climb. What's he going to do with the rest of his life that's going to be more interesting than anything he's already done? I bet he'd love to be back in the Oval Office if the opportunity were there.


*Emphasis added by me.
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  #34  
Old 03-18-2004, 10:58 PM
CaveMike CaveMike is offline
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Quote:
Originally Posted by RTFirefly
...What's he going to do with the rest of his life that's going to be more interesting than anything he's already done?
Apparently he is working on The William Jefferson Clinton Presidential DVD Library.
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