I’m curious about your support for this claim.
If the 22nd Amendment had been “intended” to expand on the eligibility requirements in Article II (which are then imposed on the Vice President by the 12th Amendment), why wouldn’t they have used the language that was used in those provisions? Wouldn’t we generally assume the use of different (more limited language) was intentional and significant?
For me, the whole argument lies with the fact that the amendment uses “elected”. If the intention was that once you had your 1.5 to 2.49 terms you could no longer be President then the amendment would read: No person shall serve as President more than twice. And because of this, under he 12th Amendment a two-term President can be elected as Vice-President since they become President as necessary without an election.
I think it’s as simple as that.
435 Representatives and 96 Senators missed it but we all see it as clear as day? Or am I misunderstanding your point?
The 22nd amendment mentions no such harm. This amendment was recommended in a report from the Hoover Commission, interestingly headed by guess who. So far I have not found a reference to this amendment being recommended for any reason other than political partisanship. The country is not in the least bit harmed by a president succeeding to office as a result of the will of the people placing him in the position to do so after they have already served two terms. I will repeat that there is less potential harm than with a person untested in the executive office assuming the position. Further, this concept would mean the amendment should exclude any president who has served two terms from any position in the line of succession to the presidency. I doubt this was expressed as the intent of the amendment at any time.
Do you ever get the feeling that the people drafting amendments haven’t thought it through thoroughly?
The 22nd Amendment was a bit of a rush job — Republicans took control of the House and Senate in the 1946 midterm elections, many of them running on a Presidential term limit pledge. The House passed its initial version just weeks after Congress convened in January 1947. The final version was passed in March. Not a lot of time for a full vetting.
It’s certainly not unheard of for a legislature to pass a bill containing sloppy language that has entirely unintended consequences.
The Senate did make some minor adjustments to the bill. The House accepted them in reconciliation.
the Senate developed its own proposed amendment, which initially differed from the House proposal by requiring that the amendment be submitted to state ratifying conventions for ratification, rather than to the state legislatures, and by prohibiting any person who had served more than 365 days in each of two terms from further presidential service. Both these provisions were removed when the full Senate took up the bill, but a new provision was, however, added. Put forward by Robert A. Taft, it clarified procedures governing the number of times a vice president who succeeded to the presidency might be elected to office.
All these ambiguities could have been fixed at the time. Congress did not care. The newly-in-power Republicans - with help from conservative Democrats - wanted revenge. The Amendment’s purpose was simply to prevent a new Roosevelt from a third term. Nothing else mattered, not even the possibility that a Republican might be popular enough for a third term. This soon became ironic with Eisenhower and Reagan, although age and health would have had them step down in any case. Probably.
Note the unusual timing of state approvals in that link. Eighteen states all-but-instantly approved after the Republican red tide in 1946, but the amendment got stuck. A few states trickled in after 1948, the Democratic comeback. Only after the 1950 midterm with an unpopular Truman in office did the Republicans gain more states and push the amendment over. This was the most partisan amendment in the 20th century. Revenge overtook sense.
Another oddity presents itself on that page. The House voted 285-121 and the Senate 59-23. What’s odd about that? Two-thirds of each house are needed to pass an amendment. Two-thirds of the House’s 435 is 290; two-thirds of the Senate’s then 96 is 64. Large numbers didn’t vote at all, most of them apparently Democrats. The scant numbers also show that two-thirds is to be defined “of the members present and voting” rather than “of the entire body.”
Trying to parse the amendment with sheer logic is futile. “You know what we meant” is stamped across every word.
You keep going on about “harm”. What’s the relevant of harm? Whether it was a good idea or not, Congress and the states decided not to allow someone to run for President who’d already been President for too long. They had their reasons for that. And those reasons, whatever they were, good or bad, apply just as much to presidents succeeding from the vice presidency as to Presidents elected directly.
The amendment has clear language allowing it. Why should any court hear an argument based on it? There’s no reason to interpret any intent outside of the circumstances clearly allowed by the amendment. It’s stated purpose to disallow one person from being elected to the office of president more then 2 times.
A major purpose of the court system is to determine whether “clear language” is actually clear in the way one party interprets it. For any case as important as eligibility to the presidency, of course the courts would hear arguments.
Sure, they might hear arguments, but that doesn’t mean they’ll do anything further. This is not an amendment that is ambiguous in the wording. Someone might interpret the 3rd amendment to mean soldiers may not be cut up into 4 pieces in a private home during a time of peace without the owner’s permission so maybe a court would clarify the language but there’s nothing in the 22nd that can be misinterpreted so some other argument must be made. The need for the court to consider it is not a matter of any importance at all, that’s where the harm comes in, or fails to in this case as there is none. A former 2 term president selected by a presidential candidate will not cause the wheels of government to run even more slowly or even less effectively than it does now.
What’s left will be a weak argument about original intent. Somewhere I heard that the original intent of the amendment was simply to make sure we did not get another Democratic president like FDR. A president who was elected to all four of his terms. There was no concern about succession even though the current president in office at the time the amendment was proposed had succeeded FDR into the presidency and could still be elected to office for an unlimited number of terms under the amendment.
Sure, on any of the few days the SCOTUS actually works they might be hungover from a weekend of party on some billionaire’s yacht and take a challenge like this seriously, but if their clerks are on the ball they’ll drop this ball.
I think you’re a bit too dismissive of the strength of the argument. I tend to agree with you that in the scenario we’re talking about (two-time president running for VP and then succeeding to the presidency), this would be permissible; my reason for this is that the Amendment restricts a previously unrestricted right of fundamental importance, and that therefore a cautious interpretation which respects the wording of the text and doesn’t go further than that wording is appropriate: But I don’t think the opposite view is a completely far-fetched one that only a Supreme Court out of its mind would even consider.
As you may recall, there were some moonshot legal arguments made about both candidates in 2008. The entire “birther” conspiracy theory relied on interpreting “natural born citizen” to mean that the U.S. citizenship that Obama inherited from his mother regardless of his place of birth was something lesser than required - that’s the only way that him being born abroad would have mattered. There was a similar, if less vocal, argument about McCain’s birth in the Panama Canal Zone.
None of this ever reached the Supreme Court, but the strong implication given by judges at the time was that they were not inclined to overrule the will of the voters by making a remotly controversial interpretation of the eligibility clauses. Furthermore, there are issues of timeliness in trying to litigate eligibility that late in the game when candidates had been appearing on primary ballots for a full year prior to the inauguration.
So, in a slightly more realistic scenario not involving Zombie Washington - let’s say Bill Clinton wants to run for vice-president or something:
Any interpretation of the 22nd amendment that prevents a 2 term president from running as a VP would also apply down the line of succession to the Speaker or the House, President pro tempore of the Senate, then cabinet secretaries. So Joe Biden could not appoint Barack Obama as Secretary of State should he feel that is necessary, nor could the House elect George W to be the Speaker.
And finally, another argument against court interpretation of the amendment, Article II, Section 1, Clause 6 allows the congress to restrict the qualifications for president in the event of succession without a constitutional amendment leaving this as a matter that can be decided by the people, and as of yet the people have not cared to address the matter.
There is such a thing as a writ of quo warranto, which any citizen has standing to seek after the election.
This has been brought up in discussions about the application of the 14th amendment in the upcoming election. However, I think in all such cases it will require substantial more substantial cause than presented in the matter of the 22nd for the courts to intervene after the will of the people has been determined in an election.
Although this is off-topic, the notion that Obama would not have been eligible if he had not been born in the United States would have been a pretty simple application of federal law at the time.
At the time, a child born (outside the United States) to one US citizen parent and one alien parent would be a US citizen at birth only if the citizen parent “was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.” Because Obama’s mother was 18 at the time he was born, she had not been present in the United States (or anywhere else, for that matter) for five years after her 14th birthday.
(The law now provides that the citizen parent must be “present” for" five years, at least two of which were after attaining the age of fourteen years." 9 USC 1401).
Simply put, Obama couldn’t have “inherited” US citizenship (at birth) from his mother. He was a US citizen at birth because (but only because) he was born “in the United States”.
Interpretation of 14th Amendment case immediately moved to federal court.
[B]oth sides anticipate that ultimately the top echelons of the federal system will have to consider the issues the lawsuit raises.