Vice-President Bill Clinton

[Dellinger, Walter]

It seems to me that the text of both amendments make clear that Bill Clinton
is not barred from being Senator Kerry's running mate.  And that the literal
text does not result in any policy absurdity.   (Let me add that my opinion
is not influenced by any wish that Bill Clinton be selected; my vote is for
Edwards for VP).  First the 12th amendment: it says that  "no person
constitutionally ineligible to the office of President shall be eligible to
that of Vice-President of the United States."     But Clinton is not
"constitutionally ineligible to the office of President" under the original
eligibility clauses.  And the 22nd amendment either makes him ineligible to
the office of President or only ineligible to be 'elected' President.  In
either case the 12th amendment has nothing to add.
 
    By its terms  the 22nd amendment of its own force does not make him
"ineligible to office of President."    It clearly, expressly, explicitly
makes him ineligible to be  "elected" president again; it doesn't make him
"constitutionally ineligible to the office of President".  It would have
been easy to use that phrase from the 12th amendment if that is what the
22nd amendment intended to do.  
 
    The argument for ignoring the plain text of the 22nd amendment, as I
understand it, is that it would make absolutely no sense to render a person
who has served two terms ineligible to be "elected" President, while
nonetheless allowing that person actually to serve as President if he comes
to the office some way other than by election.  But it does make sense to
keep the 22nd amendment narrowly focused on barring "election" to the
Presidency of a two term President.  The amendments framers may have thought
that twice being President gave too great an advantage in the election
process.  But they may well not have wanted to go further than that and also
prevent a former President who serves in other positions in the govenment
from being in the line of succession.  A young ex-President might well be
tapped to serve not only as Vice President by as a member of  the House or
the Senate, or in a future cabinet.  Is such service to be precluded?  Must
such a person be barred from being elected Speaker of the House or president
pro tem of the Senate or serving as secretary of State because such service
might lead to his coming by succession to the presidency?  Or could he or
she hold those positions but be passed over in the line of succession if the
President and Vice President were to die resign or be removed?  Would we
want a Speaker of the House who could not be President if the Pres and VP
were dead?  
 
    Running to be elected President yet again is something that a two term
president could choose to do on his or her own motion in the absence of the
22nd amendment.  That is barred.  But one can serving as vice president --
or in any other of the line of sucession positions -- only by the choice of
another officer(the current President) or body such as the House or Senate.

        And I can imagine a situation in which we might very well want to
have a former 2 term president available for the vice presidency.  Suppose
in a national truma, the President, the Vice President and perhaps others
are killed.  The new President (drawn perhaps from the cabinet or
congressional leadership by the laws of succession) needs to reassure the
country that an experienced hand stands behind him in case further attacks
occur or he or she is otherwise disabled.  The best choice might well be
under the 25th amendment to submit to the Congress a former President to be
confirmed to serve as Vice President until the next election.
    These are not overpowering policy arguments.  But they don't have to be.
The langauge is plain, and need not be expanded beyond "election" . 
 
 
"no person constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States."  
 
-----Original Message-----
From: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu] 
Sent: Wednesday, March 03, 2004 2:17 PM
To: CONLAWPROF at lists.ucla.edu
Cc: 'stephen.gillers at nyu.edu'
Subject: Vice-President Bill Clinton



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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