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PE President Elect

. Can a two-term president be vice president?
by JAMES R WHITSON < james@presidentelect.org >
posted August 19, 2000
... .
CNN Interactive recently ran an article on whether Bill Clinton could constitutionally serve as Al Gore's vice president titled "Why the Constitution permits a Gore-Clinton ticket".open link in new window It was written by Michael C. Dorf, vice dean and professor of law at Columbia University, where he teaches a class on constitutional law. He is also a contributor to the web site FindLawopen link in new window and a co-author of a book titled "On Reading the Constitution". As an amateur presidential historian and a constitutional law enthusiast, I was very interested in reading his opinion. I disagreed with his interpretation and was going to write it off as just a difference of opinion. Surely a professor who teaches constitutional law wouldn't let his personal political views cloud his professional judgement! Unfortunately, when I read the last four paragraphs of the piece, I had to concede the possibility. After spending the entire article explaining the legal reasons he believes Clinton could serve as Gore's VP, he then tells us Clinton SHOULD be Gore's VP! His reasoning: because "we, as a people, thrive on [Clinton]". Ignoring Mr. Dorf's blatant partisan justification, I'd like to explain why I believe he is wrong and why the Supreme Court would not allow a two-term president to serve as vice president.

First, here are the relevant passages of the Constitution:

Article II, Section 1 (5th paragraph)
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
12th Amendment (last sentence)
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
22nd Amendment (first sentence)
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.
The general consensus has always been that after you've been president twice, you're no longer eligible to be president, and therefore you're also ineligible to be the vice president. Mr. Dorf's position that Clinton could be vice president (or even president again if something were to befall Gore) relies on the literal wording of three key phrases.
  • Article II says who is eligible to be president
  • The 12th Amendment says anyone constitutionally ineligible to be president can not be vice president.
  • The 22nd Amendment says no on can be elected president more than twice.
Mr. Dorf's says that the language of the 12th Amendment "only bars from the vice-presidency those persons who are 'ineligible to the office' of President. Clinton is not ineligible to the office of president" because he meets the three eligibility requirements set out in Article II. "He is only disqualified (by the 22nd Amendment) from being elected to that office". According to Mr. Dorf "the 22nd Amendment's prohibition on running for a third presidential term is not a condition of the office of president....[it] does not set conditions on what the 12th Amendment calls eligibility to the office of president".

In plain english, since the 12th Amendment says anyone eligible to be the president can be the vice president, and since Clinton meets the eligibility requirements in Article II (he's a natural born citizen, he's over 35, and he's been a resident for at least 14 years), and since the 22nd Amendment only says you can't be elected to more than two terms, it is perfectly OK for Clinton to be Gore's VP and then ascend to the presidency if necessary.

There are three reasons why I believe this reasoning wouldn't convince the Supreme Court.

1. Depends to much on semantics, a literal reading, or what Mr. Dorf himself calls "textualism". If the Supreme Court were to take every word of the Constitution at its most literal, we would lose a lot of freedom. For instance, the 1st Amendment guarantees "freedom of speech". Using that literal phrasing, symbolic speech, such as wearing a black armband at school or burning a U.S. flag, could be banned because it isn't literal speech.

Article II, written in 1787, uses the phrase "no person...shall be eligible to the office of the President...". The 22nd Amendment, written 164 years later, uses the phrase "no person shall be elected to the office of the President...". Language is not a constant; it is fluid. We can't expect that people in Eisenhower's day would write or speak the same way they did in Washington's. It could be credibly argued that the 1951 phrase "elected to the office" and the 1787 phrase "eligible to the office" are equal.

2. Ignores the intent and spirit of the amendment. I think it's safe to say that the writers of the 22nd Amendment did not want anyone being president more than twice. The Supreme Court often takes the intent of the author into account when making its rulings.

Mr. Dorf says that the 22nd Amendment "places no limits whatsoever on how many terms someone may serve as president, only how many times he can be elected", and that it would be "perfectly permissible" for a two term president to get a third term by ascending to the office from the vice presidency. If the authors of the amendment were only concerned with how many times someone was elected president and didn't care how many times someone assumed the presidency, why would they have added that little known second part that specifically limits the later election of someone who assumes the office? The authors clearly did not want someone who assumed a large part of someone else's presidential term to be able to have another eight years at the helm.

The spirit of the amendment prevents any one person from becoming too powerful. Mr. Dorf's assertion that "Clinton would hardly be bidding for dictatorial powers" since the VP has no real powers is not sound. A popular two-term president finding someone else to be president and then having himself made vice president has the making of a puppet presidency all over it.

3. Assumes no new eligibility requirement. Mr. Dorf explicitly assumes that the 22nd Amendment puts no new conditions on presidential eligibility. But it could be argued that the 22nd Amendment is not just a disqualification of those elected to two terms, but a new eligibility requirement for the office: to be eligible to the office of president you must be a natural born citizen, at least 35 years old, a resident for 14 years, and not have been elected to the office of the President more than twice.

Mr. Dorf, politically motivated as he may be, makes a case for his opinion. And if the Constitution were a rigid, inflexible document, he might be right. Fortunately, the Supreme Court is more concerned with making sure the Constitution does what it was meant to do, than it is with semantics and word games.

UPDATE (10/1/2007): On the Late Show with David Letterman, Bill Clinton discussed this scenario in regards to his running as VP for his wife.
Letterman: Now there was a discussion last week, and there is I guess a greater discussion, and there's some confusion, and maybe I'm the only one confused about the eligibility of a man who has been elected twice as President to possibly be named later on the ticket as Vice President. Constitutionally speaking, can that happen?"

Clinton: I don't believe so. There are some people who believe it can, and they have contorted readings of the amendment, the 22nd Amendment. But I believe as a matter of general interpretation, you're supposed to read all the Constitution including all the Amendments as if they were written almost on the same day at the same moment, so they're consistent with one another. And the Constitution says the qualifications for Vice President are the same as those for President. Now you can read that to mean 'to serve,' not 'to run for.' But I just don't believe it's consistent with the spirit of the Constitution for someone who's been President twice to be elected Vice President. I just don't think it's Constitutional. I don't think it's right and I wouldn't want to do that. I'd want to do whatever I could do to be of highest and best use for her, but there are lots of wonderful people out there, including all the people that are running this time would be good Vice Presidents. And, that's just not in the cards.

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