Vice-President Bill Clinton
trevor-morrison at postoffice.law.cornell.edu
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."
>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,
>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.
>To post, send message to Conlawprof at lists.ucla.edu
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Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
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