Vice-President Bill Clinton

Wed Mar 3 15:45:25 PST 2004

Michael Dorf took the same position as Walter back in 2000, hypothesizing a 
Gore-Clinton ticket.  See http://writ.news.findlaw.com/dorf/20000731.html.

At 12:32 PM 3/3/2004 -0800, Dellinger, Walter wrote:
>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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Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
607-255-9023
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