can a former President who has served two terms run for Vice President

[Do_Not_Taunt]

Just missed the edit window on my previous message…

Here once again is the relevant section from the 22nd Amendment (bolding added):

@22nd Amendment

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.

[Colibri]

@Do_Not_Taunt

Right, except that isn’t a question. The 22nd amendment clearly says ‘elected.’

While this is true, it is clear that the intent of the amendment - passed following the unprecedented four terms to which FDR was elected - was to limit the term of service of the President to no more than 10 years total. It is highly unlikely, should the question ever be put to the Supreme Court, that they would ignore the evident intent of the amendment.

Admittedly the wording of the amendment provides a loophole of sorts by which someone could theoretically serve more than two (or two and a half) terms. However, under present political circumstances it is very unlikely that this would ever be tested. It would be too risky for a party to try this strategy to get a candidate who was otherwise ineligible for election into office. The only circumstance in which this could occur is if a party was so dominant that it had stacked the courts to permit this. But if that was the case, it would be simpler for them just to repeal the 22nd Amendment rather than employing a circuitous route to the same thing.

[RTFirefly]

I’ve been in at least a couple of the previous 12th/22nd Amendment threads, and my position is unchanged: I agree with Do Not Taunt in that I don’t see any circularity between the two.

If a person who had already been elected twice to the Presidency (e.g. Clinton, GWB) were to find themselves in the order of succession to the Presidency in any way, shape, or form (VP, Speaker, Cabinet), there’s nothing in the 22nd Amendment that would require that person to be skipped over. They can be President again, under the right circumstances; they just can’t be elected President.

So the 12th Amendment doesn’t prevent such a person from being elected to the office of Vice President, because that person is eligible to be President should the incumbent die in office.

[RTFirefly]

@Colibri

While this is true, it is clear that the intent of the amendment - passed following the unprecedented four terms to which FDR was elected - was to limit the term of service of the President to no more than 10 years total. It is highly unlikely, should the question ever be put to the Supreme Court, that they would ignore the evident intent of the amendment.

IANAL, but it would seem to me that while legislative intent is important in otherwise ambiguous cases, the plain meaning of the 22nd Amendment is crystal clear. Arguing that while the authors of the Amendment clearly said A while clearly meaning B is, IMHO, a losing argument for those on the B side.

The only circumstance in which this could occur is if a party was so dominant that it had stacked the courts to permit this. But if that was the case, it would be simpler for them just to repeal the 22nd Amendment rather than employing a circuitous route to the same thing.

Based on recent history, it seems plainly easier to stack the Supreme Court than to get even a mildly controversial Constitutional amendment through 38 state legislatures.

[Do_Not_Taunt]

@Colibri

While this is true, it is clear that the intent of the amendment - passed following the unprecedented four terms to which FDR was elected - was to limit the term of service of the President to no more than 10 years total. It is highly unlikely, should the question ever be put to the Supreme Court, that they would ignore the evident intent of the amendment.

I’m not a lawyer, but this seems completely incorrect to me. So long as we’re talking about a previous two-termer taking a position that puts them in the line-of-succession other than Vice President, I can’t believe the courts would ignore the clearly precise language of the amendment in favor of divining the intent of the authors of the amendment, the Congressmen and Senators who passed it, and the state legislators who ratified it.

ETA: Yeah, what RTFirefly said.

[barbitu8]

@Do_Not_Taunt

I’m not a lawyer, but this seems completely incorrect to me. So long as we’re talking about a previous two-termer taking a position that puts them in the line-of-succession other than Vice President, I can’t believe the courts would ignore the clearly precise language of the amendment in favor of divining the intent of the authors of the amendment, the Congressmen and Senators who passed it, and the state legislators who ratified it.

ETA: Yeah, what RTFirefly said.

SCOTUS doesn’t divine intent; it determines intent by the written history concerning the amendment. Documentation determining the reason for the amendment must be of record in the Congressional Record or other written material. It would be presumptious to conclude what SCOTUS would do in any case.

[Colibri]

@RTFirefly

IANAL, but it would seem to me that while legislative intent is important in otherwise ambiguous cases, the plain meaning of the 22nd Amendment is crystal clear.

But obviously it’s not “crystal clear.” If the writers of the 22nd Amendment had intended that anyone should be permitted to serve more than two and a half terms, they would have made it clear in the wording. In the context of FDR’s multiple terms, it is certainly that this is what the Amendment was intended to prevent. The use of “elected” here is an oversight; it apparently didn’t occur to anyone at the time that the wording might be used to permit this kind of tactic.

This sort of oversight is hardly unique to this amendment; see also the precise meaning of “natural born citizen” or of the Second Amendment.

See here for some discussion.

[Do_Not_Taunt]

@barbitu8

SCOTUS doesn’t divine intent; it determines intent by the written history concerning the amendment. Documentation determining the reason for the amendment must be of record in the Congressional Record or other written material. It would be presumptious to conclude what SCOTUS would do in any case.

I understand what you’re saying, but this just isn’t a science. There’s a lot of guesswork involved in trying to figure out intent, especially for a Constitutional amendment where you have 3/4 of your state legislatures also weighing in. You may object to my use of the verb ‘divine’ here, but to declare that they ‘determine’ it as though intent were some clear, objective, factual thing that the court can find if they just read the right documents is pushing the pendulum too far the other way.

[UltraVires]

@Colibri

But obviously it’s not “crystal clear.” If the writers of the 22nd Amendment had intended that anyone should be permitted to serve more than two and a half terms, they would have made it clear in the wording.

I think that the word “elected” is crystal clear. While I agree with you about the intent of the drafters, why would they “ma[k]e it clear” who is permitted to serve? It doesn’t say that men with Kenyan fathers and white mothers are permitted to serve. The amendment was about who was prohibited, not to serve, but to be elected. Anyone who meets all of the qualifications is permitted to be elected President.

If that’s what they meant, then they should have said it.

[Colibri]

@Do_Not_Taunt

I understand what you’re saying, but this just isn’t a science. There’s a lot of guesswork involved in trying to figure out intent, especially for a Constitutional amendment where you have 3/4 of your state legislatures also weighing in. You may object to my use of the verb ‘divine’ here, but to declare that they ‘determine’ it as though intent were some clear, objective, factual thing that the court can find if they just read the right documents is pushing the pendulum too far the other way.

Again, given the context under which the 22nd Amendment was passed in 1947, there is no problem at all in determining intent. The intent of the amendment is unquestionably to prevent an individual from serving more than two full terms (or 10 years including a partial term). Republicans were concerned that a popular president like FDR could keep being re-elected indefinitely, and the amendment was proposed to formalize the two term limit that had been informally observed up to then. I’d challenge you to find any documentation from that era that indicated that there was any intent, on anybody’s part, for the amendment to allow an individual to serve indefinitely as president, as long as they didn’t achieve it by election.

I think the strongest argument against the interpretation is simply that it makes no logical sense. Why bother to pass an amendment to prevent indefinite re-election, if you are going to allow an individual to serve more than two terms by some back-door method?

[RTFirefly]

@Colibri

But obviously it’s not “crystal clear.”

What do you mean, it’s not?

Remember, I’m talking about the plain meaning of the words as written. And quite frankly, that’s completely devoid of ambiguity.

The only point at which any potential ambiguity enters the picture is when you bring in intent. But until you do that, there’s none.

You can argue that I’m wrong about how Federal judges and Justices treat intent when a statute (or Constitutional amendment, in this case) is crystal clear in its literal meaning, and that literal meaning is not absurd on its face. Because I could well be wrong there; I’m out of my field, and I know it.

But you don’t have to have had more than eighth grade English to determine the presence or absence of ambiguity in the wording of the Amendment itself.

So feel free to explain how you parse it any other way without reference to intent, and we can talk.

If the writers of the 22nd Amendment had intended that anyone should be permitted to serve more than two and a half terms, they would have made it clear in the wording. In the context of FDR’s multiple terms, it is certainly that this is what the Amendment was intended to prevent. The use of “elected” here is an oversight; it apparently didn’t occur to anyone at the time that the wording might be used to permit this kind of tactic.

Well that’s the thing: (a) it’s your reading of intent, and (b) the natural argument here is that Congress simply overlooked or didn’t take seriously the possibility of gaining all or most of a third Presidential term by other routes besides election.

You know what happens when a loophole like that is left in the law? People drive through it, regardless of intent. That’s why we have Hummers.

See here for some discussion.

Did you read the second sentence of the second paragraph? White is black, up is down, etc.

[RTFirefly]

BTW, I’d recommend a forum change. This is clearly a matter of debate!

[Darth_Panda]

SCOTUS would be unlikely to interpret the amendment contrary to its plain meaning, especially considering that we’d be in a position that by the time that the Court got around to ruling on it, the current term would probably be nearly over anyway. Not to mention that if the next person in line was someone from the opposing party, it would come off looking like a very partisan/political move by the Court, which they typically like to avoid if they can - and if the person next in line were of the same party, they may not want to even bring the case for fear of alienating their party, and I’m not sure who else would have standing to bring it.

[Elendil_s_Heir]

SCOTUS might also dodge the issue as a political question, accepting as a fait accompli that someone arguably ineligible was already serving as President or in a position to begin doing so tomorrow if disaster struck.

And Scalia, for one, never looks at legislative intent if the words of the law are clear, or seem to be.

[BobLibDem]

@Tom_Tildrum

My understanding is that that particular language was chosen to allow someone who had succeeded to the Presidency (after, say, a President’s death) to run for the office in his or her own right two times. For example, Harry Truman, who succeeded to he Presidency upon FDR’s death and won reelection in 1948, could permissibly have been elected again in 1952 if he had chosen to run and won. This means that the maximum length of a President’s service set by the 22d Amendment is 2 full terms plus 1 partial term.

The argument for allowing Bill Clinton to run for VP in 2012 is that if Obama died in office, Clinton would only then be serving the 1 partial term that the 22d Amendment would clearly have permitted to Harry Truman. In other words, the argument is that it should not make a constitutional difference that that partial term would come after Clinton’s two full terms instead of before it.

Truman could have ran as many times as he wanted:

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.