Vice-President Clinton?

[Richard D. Friedman]

I don't think that really addresses the question I raised.  Truman was
exempted by the first clause of the second sentence of the Amendment
(having been President when the amendment was proposed by Congress).  But
my question is this:  Those who were worried about multiple terms shouldn't
have had too much difficulty anticipating that the first sentence as worded
-- prohibiting election rather than service -- would allow a President who
had the nation in thrall to run as VP with a shadow running mate who would
immediately resign.  (Far-fetched?  Maybe.  But if an eternal President is
a genuine concern then so too might be a President persuading the
electorate to do an end run around the amendment.  Remember Lurleen
Wallace, elected Governor when husband George couldn't run again -- but the
whole state knew who would exercise power.)  So I would think proponents of
the amendment would worry about this prospect, and I'm wondering whether
anything was said about it at the time.

The mystery seems to be compounded by the fact that the second clause of
the second sentence is worded in terms of service rather than election
(i.e., if you're already in your third term when the thing gets ratified
you're not booted out immediately but get to serve out the term.).  Does
this suggest bad drafting? (that is, maybe this proviso shouldn't be
necessary given that the first sentence only applies to election and by
hypothesis isn't yet effective at the time the incumbent got elected to a
third term.  Or was this just prudential to make sure nobody could think
the impact of the amendment was an immediate hook?)  Or did the drafters
have something in mind that's escaping me by making the first sentence
speak principally in terms of election rather than of service?

Maybe the answer is that it isn't so easy to draft a solution.  Here's one
possibility -- add to the first sentence a third clause:  "and no person
shall be eligible to become President who has served as President for eight
years or more or who, on completing such term, shall have served as
President for more than ten years."  No, I'm not suggesting a 28th amendment.

Rich Friedman

At 02:48 PM 06/06/2000 -0400, you wrote:
>It seems to me that people HAD to be aware of it because FDR had just
>been succeeded by his VP Truman, who had then been elected ONCE.  It
>seems to me that the way it was worded carefully allowed him to run
>again, if he wanted, in 1952.  A person can twice be elected president
>but can serve as VP any number of times.  That is the literal reading,
>in my view.  Also I don't see anything wrong with this reading.  Even if
>someone ended up serving part of a term as an ex-VP, s/he could never
>serve three full consecutive terms.
>LFG
>"Richard D. Friedman" wrote:
> >
> > I'm curious whether anyone knows whether the loophole that has been
> > discussed here -- someone who has already served 2 terms as President can
> > serve more so long as he or she does not take office by election -- was
> > addressed at the time the 22nd amendment was passed.  It's pretty gaping,
> > and given that the intention of the amendment (as I understand it) was to
> > prevent long-time tenure of the office by a popular incumbent (rather than
> > merely repeat election), it would seem the drafters might have been very
> > concerned about a ploy such as election to the vice presidency with a
> > compliant running mate who resigns at 12:01 on January 20.
> >
> > Rich Friedman
> >
> > At 08:17 AM 06/06/2000 -0700, you wrote:
> > >I don't see how that could be the case, since the original Const, Art II,
> > >sec 1, cl 6, provides for the possibility that one may become or act as
> > >president without being "elected."  Any such person would have to be
> > >"eligible."  Furthermore, the "eligible" language in the 12th Am precisely
> > >tracks the "eligible" language in Art II, sec 1, cl 5 (dealing with age,
> > >citizenship, etc), strongly suggesting that is what was understood as
> > >relating to "eligibility" for 12th Am purposes.
> > >
> > > > -----Original Message-----
> > > > From: Daniel Hoffman [mailto:guayiya at BELLSOUTH.NET]
> > > > Sent: Monday, June 05, 2000 6:31 PM
> > > > To: CONLAWPROF at listserv.ucla.edu
> > > > Subject: Re: Vice-President Clinton?
> > > >
> > > >
> > > > the argument below is not persuasive if--as I think is the
> > > > case--the word
> > > > "eligible" at the time of the 12th amendment was synonymous with
> > > > "electable."
> > > > --Dan Hoffman
> > > > ----- Original Message -----
> > > > From: Bryan Wildenthal <bryanw at TJSL.EDU>
> > > > To: <CONLAWPROF at listserv.ucla.edu>
> > > > Sent: Monday, June 05, 2000 8:48 PM
> > > > Subject: Re: Vice-President Clinton?
> > > >
> > > >
> > > > > The 22nd Amendment does not, by its terms, pose any bar to
> > > > eligibility to
> > > > > holding or exercising the office or powers of the
> > > > presidency (as do the
> > > > > 35-yrs-old and "natural born citizen" requirements in Art
> > > > II, sec 1, cl
> > > > 5).
> > > > > It merely limits how often a person may be "elected" president. >
> > > >
> > > > Prof. Tushnet suggests the 12th Amendment is a bar, but the
> > > > 12th merely bars
> > > > > from the Vice-Presidency any person "ineligible to the office of
> > > > President."
> > > > > The 22nd Amendment, unlike Art II, sec 1, cl 5, does not
> > > > limit who is
> > > > > "eligible to the Office of President," but again, as noted
> > > > above, merely
> > > > > limits when and how often one may be "elected" to that
> > > > office, leaving it
> > > > > quite flexible when or how long a person might actually be
> > > > eligible to
> > > > hold
> > > > > the office
> > > >
> > > >
> > > > >
> > > > > Bryan Wildenthal, Thomas Jefferson (who might be rolling over in his
> > > > grave)
> > > > > School of Law
> > > > >
> > > >