Vice-President Bill Clinton

[Richard D. Friedman]

I agree that the constitutional issue is more difficult than the Op-Ed 
suggests, though I think Steve may be  right in the end -- but because the 
issue isn't so clear I doubt anyone will ever push the point.  The 12th 
amendment says no one who is "ineligible to the office of President" shall; 
be eligible to the office of VP, and art II, sec. 1, cl. 5 uses a similar 
form of worts, speaking of who shall be "eligible to the Office of 
President."  The 22d amendment clearly does not use that form of words, 
speaking of who shall be elected to be President.  The 22d amendment could 
have said, but didn't, "and no person ineligible to be elected President 
shall be elected Vice President."

Looking beyond language to constitutional policy, it's an interesting 
question.  That the 22nd Amendment speaks in the way it does probably does 
not reflect a concern with excessive number of times being elected rather 
than with excessive time served in the office; I suspect it was worded this 
way because the method of preventing a person from serving a time deemed 
excessive was to prevent him from being elected to a new term, rather than 
to cut off a term in the middle.  On the other hand, one could say that the 
attempt of the amendment was to prevent a dynasty, and if one who had 
served two terms can only become President by the fortuity of the President 
dying or otherwise leaving office in the middle of the term, there's no 
real threat of a dynasty.  On the other hand, what legal restraint is there 
then to prevent a sham in which the former President keeps running for VP 
with puppets who resign after a day?  And so forth.

Good exam question?

Rich Friedman
University of Michigan Law School

At 11:17 AM 3/3/2004 -0800, Scarberry, Mark wrote:

>Prof. Stephen Gillers writes in an op-ed in today's NY Times, 
><http://www.nytimes.com/2004/03/03/opinion/03GIL.html>http://www.nytimes.com/2004/03/03/opinion/03GIL.html, 
>that John Kerry should consider selecting former Pres. Bill Clinton to be 
>his running mate. Prof. Gillers says this would not violate the 
>Constitution, even if the former president were then to succeed to the 
>presidency, because the 22nd Amendment only prohibits a person from being 
>"elected" president twice. Were former Pres. Clinton to be elected VP and 
>then succeed to the presidency on death of the president, he would not be 
>"elected" president a third time, and thus there would be no violation of 
>the 22nd Amendment. Prof. Gillers argues, with respect to the 22nd Amendment:
>
>
>
>"Bill Clinton would be running for vice president, not president. Scholars 
>and judges can debate how loosely constitutional language should be 
>interpreted, but one need not be a strict constructionist to find this 
>language clear beyond dispute. Bill Clinton cannot be elected president, 
>but nothing stops him from being elected vice president."
>
>
>
>Of course an op-ed must be brief, and such brief pieces often cannot deal 
>with all the issues. I'm surprised, though, that Prof. Gillers does not 
>mention the 12th Amendment, which provides that "no person 
>constitutionally ineligible to the office of President shall be eligible 
>to that of Vice-President of the United States."  I'd think someone who is 
>ineligible to be elected president is ineligible to the office for 
>purposes of the 12th Amendment prohibition on service as vice-president. 
>Such a reading is consistent with the policies behind the 22nd Amendment's 
>treatment of the service of a person who succeeds to the presidency 
>without being elected; such service (if more than half a term), reduces 
>the further eligibility of the person from two elected four-year terms to one.
>
>
>
>Perhaps I'm missing something here, but I'd be interested to hear what 
>list members think of the application of the 12th Amendment. I suppose the 
>reference in the 12th Amendment to eligibility is to the Article II, 
>section 1, cl. 5 eligibility requirements, and perhaps there is an 
>interesting interpretive question as to whether that reference should be 
>construed to incorporate an eligibility requirement added by a later 
>amendment (the 22nd).
>
>
>
>In any case, Prof. Gillers is right to suggest that people would pay to 
>see a debate between Vice-President Cheney and former President Clinton.
>
>
>
>Mark S. Scarberry
>
>Pepperdine University School of Law
>
>
>
>P.S. I don't know whether Prof. Gillers is on this list, and thus I've 
>copied him on this message, as a courtesy.
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