Could Kerry choose Clinton as a running mate.

Factual Questions
21

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.

22

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.

23

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.

24

To address some of the responses to my previous post:

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.

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.

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.

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.

25

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…

26

…I always thought that Batman was a charactor, not a person.

27

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.

28

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.”

29

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.

30

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.

31

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.

32

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?

33

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.

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.

34

Apparently he is working on The William Jefferson Clinton Presidential DVD Library.