Vice-President Bill Clinton

[Stephen Wasby]

MessageI hesitate to intervene in this discussion among those quite learned on this subject, but, as I remember, the 22nd Amendment sets a ten-year (not simply two-term, or eight-year) limit. Thus if WJC were vice-president and succeeded to the office of President after two years had passed, there would be no problem with the 10-year limit -- totally apart from the well-made point that he wouldn't have been "elected to the office of President."
    steve wasby

    But ----- Original Message ----- 
  From: Dellinger, Walter 
  To: 'Scarberry, Mark' ; CONLAWPROF at lists.ucla.edu 
  Cc: 'stephen.gillers at nyu.edu' 
  Sent: Wednesday, March 03, 2004 3:32 PM
  Subject: RE: Vice-President Bill Clinton


  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,  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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