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Bill Clinton for Vice-President?

A Christian Science Monitor op-ed argues that this is advisable, and constitutional. I don't think so, because the Twenty-Second Amendment's bar on a President serving more than two terms also applies to the Vice-President (for reasons I touch on below). But, as I suggested here and here, the matter is more complex than it first appears.

Here are the relevant constitutional provisions, in relevant part:

  • The Twelfth Amendment: "[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."
  • The Twenty-Second Amendment: "No person shall be elected to the office of the President more than twice ...."
  • Article II, § 1, cl. 4: "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."

The question, then, is this: Does "constitutionally ineligible to the office of President" mean "constitutionally barred from being elected to the office of President," or "constitutionally barred from serving in the office of President"?

If it means the former — if "eligible" is roughly synonymous, for elected offices, with "electable" — then Bill Clinton would be ineligible to the office of President because of the Twenty-Second Amendment, and thus ineligible to the office of Vice-President because of the Twelfth Amendment. On the other hand, if "eligible" means simply "constitutionally barred from serving," then the Twenty-Second Amendment doesn't speak to whether Bill Clinton is eligible for the office of President, since it only says that he may not be elected to that office. And because there's nothing in the constitution that makes Clinton ineligible for the Presidency, the Twelfth Amendment doesn't make him ineligible for the Vice-Presidency.

My tentative answer is that "eligible" roughly means "elected." I realize that this is far from perfect evidence — it's 40 years later than the usage — but the earliest law dictionary the library could find for me, Bouvier's (1843), defines "eligibility" as "capacity to be elected." (I take it that, by extension, for appointed offices it would mean "capacity to be appointed.") If that's how the term was understood in 1804, then Clinton would not be eligible to the office of President, and thus under the 12th Amendment not eligible to the office of Vice-President.

Some mid- to late 1800s cases also define eligible as referring to "capacity of holding, as well as capacity of being elected to an office" (see Carson v. McPhetridge, 15 Ind. 331 (1860)); but that's in the context of saying that someone who isn't eligible to an office isn't capable either of holding the office or being elected to it. I've seen no evidence that, contrary to the Bouvier's definition, a person would have been seen in the early 1800s as being "eligible" to an office when he was legally barred from being elected or appointed to it, and the only question related to whether he could automatically assume it under some succession statute.

On the other hand, Bruce G. Peabody & Scott E. Gant, The Twice and Future President, 83 Minn. L. Rev. 565 (1999), argues the contrary, though I find myself tentatively unpersuaded by the article's position:

First, it is by no means clear that the term "eligibility" as used in the Twelfth Amendment refers to or incorporates a person's reeligibility under the Twenty-Second Amendment. At the time the Twelfth Amendment was written there was, of course, no Twenty-Second Amendment; therefore, the Twelfth Amendment could not have originally meant to preclude someone from being Vice President who had been elected President twice. Rather, the Twelfth Amendment's reference to "eligibility" likely pointed only to the "eligibility" provision of Article II, Section 1, clause 4 ....

Second, even if the Twelfth Amendment's eligibility provision is to be read in light of the proscriptions of the Twenty-Second Amendment, it could be read as affecting only persons who would become President. If this understanding is correct, the Twelfth Amendment's provision that "[n]o person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States" has no effect on individuals who might simply act as President. In other words, a Vice President "constitutionally ineligible to the office of President" might occupy the vice presidency and eventually act as President, while being ineligible to assume that Office by becoming President through succession....

Third, and most importantly, even under the most expansive reading of what constitutional "eligibility" might include[,] ... we do not believe [for reasons elaborated elsewhere in the article -EV] an already twice-elected President is "constitutionally ineligible to the office of President." ... Even if one leaves aside [scenarios involving succession from the Vice Presidency to the President], there are other non-electoral means of reassuming Office available to a twice-elected President [-- a person's acting as President under succession statutes triggered by the unavailability of either the Vice-President or Presesident, or becoming President if chosen by the House of Representatives when no candidate gets a majority of the electoral votes]. Thus, if the meaning of "eligibility" under the Twelfth Amendment was transformed with the adoption of the Twenty-Second Amendment, the Twenty-Second Amendment still does not render twice-elected Presidents "constitutionally ineligible to the office of President," and it therefore cannot be said that the Twelfth Amendment prohibits a twice-elected President from serving as Vice President.

The issue, incidentally, had come up in 1964, when there was talk of a Goldwater-Eisenhower ticket (thanks to reader David Tenner for the pointer).

KeithK (mail):
Regardless of the legalese (I tend to agree with Eugene), why would the Democrats nominate someone whom a substantial portion of the country would consider to be ineligible? Why would a presidential candidate saddle himself with the inevitable lawsuits in the middle of a campaign?
6.19.2006 2:37pm
Michael Parker (mail):
For that matter, why would the Democrats nominate someone who had never gotten a majority vote when running for president?
6.19.2006 2:44pm
Dustin Ragan (mail) (www):
What VP candidates have previously gotten a majority of the votes for president?
6.19.2006 3:01pm
Cousin Dave (mail):
Hmm. Consider: I think it's Article I that defines those eligible for President as native-born citizens of age thirty-five or older. Suppose a ticket with a 30-year-old in the VP slot won office, and then the President died during the term. Could the VP assume the Presidency, even though he isn't 35 yet? I have no idea.
6.19.2006 3:11pm
alkali (mail) (www):
Here is a practical objection: the purpose of the Twenty-Second Amendment is to prevent repeated relection of a president, for whatever reason, even if a significant majority of the population would approve of that individual's election as president. If a twice-elected president could run a third, fourth or fifth time by running a straw candidate for president who promises to resign in that person's favor -- which, to my mind, is not at all a far-fetched scenario; Roosevelt could have pulled it off -- the Twenty-Second would have no force.
6.19.2006 3:16pm
Eugene Volokh (www):
Cousin Dave: The answer is right there in Article II plus the Twelfth Amendment -- the 30-year-old is ineligible to the Presidency and thus to the Vice Presidency.
6.19.2006 3:19pm
Jimmy (mail):
Because he'd beat GW today if he ran - according to several polls
6.19.2006 3:22pm
arthur (mail):
He really should run, because he could throw cigar and poker parties over at the Naval Observatory while Hillary lives in the White House. It would be a service to taloid journalism.
6.19.2006 3:23pm
Greedy Clerk (mail):
For that matter, why would the Democrats nominate someone who had never gotten a majority vote when running for president?

Under this "logic," the Republicans should not have nominated President Bush to be their candidate for the Presidency in 2000. In any event, President Clinton would have easily commanded a majority had Ross Perot not run in either 1992 and 1996 -- contrary to conventional wisdom Clinton was polling far ahead of Bush before Perot's reentry into the race in October 1992. Look it up.
6.19.2006 3:36pm
Greedy Clerk (mail):
Correction -- I meant 2004 for nominating President Bush as he did not win a majority in 2000. Not sure if he did in 2004, but it was a very slim one at best --- indeed the poorest reelection margin in over a hundred years I believe.
6.19.2006 3:37pm
Jimmy (mail):
He's gotta be better PR than Cheney at any rate - arthur is right about the tabloid field day. At least he isn't shooting old lawyer friends in the face or scowling like Gargamel of the Smurfs... Sorry for trolling but I couldn't resist. Any VP is usually more figurehead than functionary.
6.19.2006 3:38pm
John Marshall Robinson:
QUOTE - The question, then, is this: Does "constitutionally ineligible to the office of President" mean "constitutionally barred from being elected to the office of President," or "constitutionally barred from serving in the office of President"? - /QUOTE

I wonder if the questions need be presented in a disjunction. Isn't it quite possible that the phrase encompasses both electing and serving?
6.19.2006 3:46pm
GMS (mail):
Of course, no one doubts that an elected VP can succeed to the presidency upon the president's death or retirement, and then be elected to two more terms in his own right. So presumably: (i) being elected VP is not the same as being "elected to the office of the President," and (ii) succeeding to the presidency through death or retirement is also not the same thing as being "elected to the office of the President." And if that's the case, why should the result be any different if your bump-up to the big office occurs after the two elections, rather than before?
6.19.2006 3:51pm
Medis:
I have no idea what the "right" answer to this question is, but I do know that it would most likely be left to the Senate as a "political question" pursuant to the 12th Amendment.

And we really don't need that.
6.19.2006 4:05pm
PersonFromPorlock:
Good Lord, twice and out! Why else even bother with an amendment? To say, in the most casuistic way possible, that someone who's been President twice can be President again?
6.19.2006 4:08pm
Rush (mail):
Clearly its a flawed system where Bill Clinton can't run for another term, but Jimmy Carter can.
6.19.2006 4:11pm
Greedy Clerk (mail):
GMS, I suggest you read the 22nd Amendment. It indeed distinguishes between election to President and ascension to the Presidency via the death, resignation, etc. of a President. It limits the number of years a person can be President to 10 years. Thus, if someone ascends to the presidency during the second year of an elected President's term, that person could only be elected to the Presidency once.
6.19.2006 4:51pm
CJColucci:
Suppose that, like John Quincy Adams, Bill Clinton won a seat in the House of Representatives. Being more politic than JQA, suppose he became Speaker. Suppose that on a fishing trip, the VP managed to sink his bass boat, drowning himself and the President. Does he get to be President? Secretaries of State Kissinger and Albright don't, but they were never eligible to be President.
6.19.2006 4:54pm
David Tenner:
alakali: The problem with your reasoning is that it could also be used to prohibit a former president from becoming, say, Speaker of the House, or Secretary of State, or whatever office Congress has designated as next in line after the vice-president. A party might run a straw ticket for *both* president and vice-president, then have them both resign and have the Speaker or Secretary of State (and ex-president) become president. (Leave aside the effect of the 25th Amendment here, because it wasn't enacted until two decades after the 22nd.)
6.19.2006 5:10pm
Owen Hutchins (mail):
I'm just waiting for Bush to announce that since he wasn't actually elected in 2000, he is not barred from running again...
6.19.2006 5:19pm
Luke:
@Owen:

Although I'm sure you were kidding, Al Franken seriously raises that point in one of his books. Basically he claims that since George Bush was 'appointed' and not elected, he is eligible for a third term. He even puts it in as a footnote to make it look like some kind of scholarly aside. Of course this is bullshit, as he was elected, not appointed, when the Supremes stopped the recounts.
6.19.2006 5:34pm
PersonFromPorlock:

I'm just waiting for Bush to announce that since he wasn't actually elected in 2000, he is not barred from running again...

That's after he uses his legitimate current tenure to pardon himself for any crimes he may have committed while only 'posing' as President. Oh my, Detonatin' Democrats! That might even get me back to watching TV again.
6.19.2006 5:38pm
Mike S.:
My tentative answer is that "eligible" roughly means "elected." I realize that this is far from perfect evidence — it's 40 years later than the usage — but the earliest law dictionary the library could find for me, Bouvier's (1843), defines "eligibility" as "capacity to be elected." (I take it that, by extension, for appointed offices it would mean "capacity to be appointed.")
Usagewise, I'm sure that's now true. But "eligible" and "elect" are etymologically related (both come from Latin "eligere", "to choose"), and at the time the Constitution and the early amendments were written I'd guess that the connection was less obscure. (Especially since they hadn't yet back-formed the word "electable", which appears to show up in the late 19th century.) Of course, "elect" didn't always mean by vote (e.g., the religous use of the term "the Elect"), but in a context where the method of election was a vote, "eligible" seems almost certain to have meant "capable of being voted in".
6.19.2006 6:03pm
Simon (391563) (mail) (www):
For whatever it's worth, Bill Clinton himself addressed this question once on Larry King Live, and after briefly outlining the relevant issues as Eugene did above (how much fun is it to see a president or former president with some grasp of subtle constitutional points?), came to the conclusion that the best reading of the 22nd was that he was not eligible.
6.19.2006 6:15pm
Chris Bell (mail):
I think it's fine if Hillary is president for 6 years, drops her VP, and then appoints Billy-boy.

That way, even if she dies, he is eligible.
6.19.2006 6:26pm
Stan Peterson (mail):
My ex-democrat instincts still compel me to point out daffiness when I see it. For the first several elections in the country, the majority of votes cast did not elect the electoral college for a state. The vote of the State legislature did. They did listen to the vox populi and selected a slate of electors representative of the state's voters.

In the 2000 election the Florida constitution says that in the event of indeterminacy (and a 500 vote margin is close to that), the legislature could and would select the electors for the Electoral College.

It is with regret that the Florida legislature ceased preparations to do just exactly that. The Republican controlled state legislature was prepared to do its duty and it should have even after the case became moot. It would have stifled all these bovine pasture patties. It would have removed the onus placed on the SCOTUS as a the selectors of the 43rd president.

GWB won the votes, this was confirmed by the SCOTUS, and if necessary by the legislature of the State of Florida.

The true problem however was the sheer uncaring of the deeply flawed Albert Gore Jr. He was able to be swayed that he might actually be able to sue his way into the presidency. I hold no candle for Richard Nixon but the most statesman like thing he ever did, was to concede defeat to JF Kennedy; rather than put the nation through a Florida like crisis. Except we wouldn't have been counting hanging chads as much as the Chicago "Cemetery Vote" and perhaps the Texas "head of cattle" vote...
6.19.2006 7:09pm
Chris Bell (mail):

The true problem however was the sheer uncaring of the deeply flawed Albert Gore Jr. He was able to be swayed that he might actually be able to sue his way into the presidency.


Yeah, except that Bush sued first.
6.19.2006 7:39pm
Brian G (mail) (www):
Only the 9th Circuit could buy any reading of the Constitution that makes Bill Clinton eligible for the office of President or Vice-President.
6.19.2006 8:49pm
Eugene G. Bernat (mail):

The 12th Amendment says, "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States."

Section 3, of the 20th Amendment at least suggests the possibility of an ineligible person being elected to the office of President and/or office of Vice-President with the following language:

"If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified."

Both the 12th and 20th Amendments make it clear an ineligible person cannot serve as either President or Vice-President.

Does the 22nd Amendment make a two term elected President ineligible to be elected as Vice President?

Here is what Section 1, of the 22nd Amendment says:

"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 President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by 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."

Here is how I see it:

No person can hold the office of President for more than two terms (eight years) under any circumstances. Any person who has acted as President for more than two years of another's term may not be elected more, than once to the office.

Following the assassination of President Kennedy, Vice President Johnson served the remainder of the term, won a term of his own and chose not to run for a second term. The only reason Johnson had a choice to seek a second term was, because he served less than two years for Kennedy. Had he served more, then Johnson could not have sought a second term.

The Constitution provides that an election for President and Vice President take place at the same time every four years (Article 2, Section 1.). Had a person been allowed to serve three years of another's term and then two terms of their own, which would mean a possibility of serving as President for 11 years. However, the one term rule for when having served more than two years limits the person to six years as President. It seems the goal was to ensure that no one serves as President for more than eight years. Without getting into provisions of forced resignations or changing dates of elections they had to adopt the two year rule.

Under the Constitution, I do not think Bill Clinton could ever hold the office of President again. Now, Clinton could be elected to serve as Vice President, but could not take office as he is disqualified as he served two terms (eight years) as President. Congress would have to direct someone who is eligible to hold the office of President to hold the office of Vice President until the disqualification was removed. I assume that would be the Speaker of the House. Clinton's disqualification is the 22nd Amendment and he would remain disqualified, until and if there were a Constitutional Amendment.

Conclusion: Clinton could be elected to the office of Vice President, however, could not take office without a Constitutional Amendment allowing him.
6.19.2006 11:09pm
GMS (mail):
Greedy Clerk -- I have read the 22nd Amendment, and it does not, as you claim, "limit the number of years a person can be President to 10 years." In fact, I don't see the words "ten years" anywhere in there. Rather, what the amendment says is that "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 President more than once."

Far from undercutting my point, this language would seem to support it, by making it clear beyond doubt that a VP who succeeds to the office of president has not himself been "elected to the office of the President" -- if he had been, he would already be encompassed by the prohibition against being elected more than twice, and there would be no need for the additional "two years" provision.

Of course, in the normal situation, the person being bumped-up from VP to president is not likely to have been president before. However, the principle is the same regardless of the timing -- being promoted from VP to president is not the same as being elected president.

Sooooo, if (i) the relevant constitutional prohibition is against being "elected to the office of the President," and (ii) a VP who succeeds to the presidency has not, in fact, been "elected to the office of the President," then (iii) there would seem to be no provision affirmatively prohibiting such promotion, and therefore (iv) the person is not prohibited from being elected vice-president. QED.
6.20.2006 4:29pm
Perseus:
If we got "two for the price of one" with the Clintons, shouldn't Hillary be ineligible to serve as president again?
6.20.2006 4:30pm
Eugene G. Bernat (mail):
The 12th Amendment says, "...no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States."

The 12th Amendment has never been repealed, so it is still fully in effect. The 20th Amendment:

Section 1. Changes the inauguration,
Section 2. The date Congress assembles,
Section 3. The process for replacing an ineligible President or Vice President and
Section 4. Grants Congress the power to create a line of succession

None of those clauses effect the 12th Amendment, with the exception it provides a process for replacing an ineligible President or Vice President. The 22nd Amendment limits the length of service.

Clinton would not be able to fulfill the duties of President, should he have to assume the role for more than two years. Therefore, since he could not fulfill the duties of President he could not serve as Vice President.

Correction: In my previous post I stated "It seems the goal was to ensure that no one serves as President for more than eight years." It is actually a maximum of ten years that the 22nd Amendment creates.
6.20.2006 9:24pm
Bruce Hayden (mail) (www):
Hey, I like the idea of Bill Clinton running for VP. Then, if that ticket is elected, and the president dies, then we can just skip over to the Speaker of the House (currently Hastert). Thus, there is a chance for the Republicans to regain the presidency even after losing the 2008 election.
6.21.2006 8:02pm
Lev:

I think it's fine if Hillary is president for 6 years, drops her VP, and then appoints Billy-boy.


She can appoint him all she wants, but Congress has to approve him for it.
6.22.2006 1:05am
Lev:

On the other hand, Bruce G. Peabody &Scott E. Gant, The Twice and Future President, 83 Minn. L. Rev. 565 (1999), argues the contrary, though I find myself tentatively unpersuaded by the article's position:

First, it is by no means clear that the term "eligibility" as used in the Twelfth Amendment refers to or incorporates a person's reeligibility under the Twenty-Second Amendment.


It seems to me this goes to a "half full/half empty" view of the 12th amendment, that is:

is a person ineligible to be VP if there is only one eligibility criterion he does not meet,

or,

is a person eligible to be VP unless he does not meet all ineligibility criteria.

It seems to me Eugene is sort of tentatively arguing the former, that is, Clinton is ineligible to be elected President, therefore, he is ineligible to be VP because he meets one of the ineligibility criteria.

The other guy is arguing that Clinton is eligible to be VP, and to be elected VP, because he is not constitutionally prohibited from being VP by all possible ineligibility criteria - the Constitution in the form of Amd 25 does not prohibit him from becoming VP by the section 2 method - and being most recent it overrides any previous ineligibilty criteria. Therefore, because there is one way he may become VP without violating an ineligibility requirement, he may be VP and may be elected VP, and may be President again through succession.

I think the latter is tortured book strapping.
6.22.2006 1:29am
Lev:
is a person eligible to be VP unless he does not meet all ineligibility criteria.

I suppose that should be

is a person eligible to be VP unless he does meet all ineligibility criteria.
6.22.2006 1:31am