The Long View 2002-05-02: Bill Clinton in 2005!

Another Constitutional law post from John. Since I'm not a lawyer, I'll refrain from commenting on the technical merits of his proposal other than to say it seems plausible to this non-specialist. I also think I remember a joke making the rounds a while ago about how W. was still eligible to run for re-election in 2008 since he wasn't really elected the first time.

Bill Clinton in 2005!

They tell a wonderful story about Kurt Gödel, the greatest of 20th century logicians. He fled Europe during World War II, and when he went to take the oath of U.S. citizenship before a federal judge, Albert Einstein himself came along as a witness. The judge chatted with his prominent visitors before the ceremony, unfortunately. Alluding to the collapse of law in Nazi Germany, the judge remarked that the Constitution prevented anything like that from happening in the United States. "Not true!" Gödel replied, and explained that he had found a logical flaw in the Constitution that could be used to found a dictatorship. It took Einstein two hours to calm him down.

Say what you like about the Clinton Administration, it did at least provide an eight-year tutorial in aspects of constitutional law that almost no one had ever heard of before. Indeed, the Clinton's still have that effect, even though they left the White House almost a year and a half ago. Liz Smith, the gossip columnist, aired an argument in her column of May 7 for the proposition that Bill Clinton really could serve a third term. The notion is that, if Bill Clinton were elected vice president, presumably as number two on a Hillary ticket, he could succeed her if she did not serve out her term. Liz Smith has no pretensions to constitutional scholarship, and it is not clear who suggested the idea to her. Nonetheless, the argument is plausible.

The Twenty-second Amendment to the Constitution was ratified in 1951, in the aftermath of the administration of Franklin Delano Roosevelt, the only president to break with the tradition of the two-term maximum. (He sought and won four terms in office.) Common knowledge has it that the Constitution now prohibits anyone from serving as president for more than two terms. However, the Amendment does not quite say that:

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Note that this text does not address how long one may be president, but simply how one becomes president. It forbids anyone to be "elected" more than twice. Succeeding to the office is another matter, however. This provision does not, by its terms, forbid someone who has already been elected president twice from becoming president if the incumbent should die or resign. I might also remark that not only vice presidents can succeed to the presidency; a two-term president emeritus might be anywhere in the line of succession.

The Twelfth Amendment defines the operation of the Electoral College and how Congress should choose a president if the College does not give any candidate a majority. A seeming objection to the possibility of a president-for-life is offered by the last sentence of the Amendment, which says:

But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President.

At the time the Twelfth Amendment was ratified, the terms of eligibility in question were clearly those set out in Article II, Section 1, Paragraph 5, which require that the president be a natural-born citizen, at least 35 years old, and a US resident for at least 14 years. The Twelfth Amendment adds a further requirement that the president and vice president not be "inhabitants" of the same state. Did the addition of the Twenty-second Amendment add to the eligibility requirements?

Not by the letter of the text. The Twelfth Amendment is about how presidents are elected, not about who can serve. All we are told about "eligibility" is that it is the same for the vice president as for the president. If succession by a two-term president is possible under the Twenty-second Amendment, the Twelfth does nothing to change matters. But might the Twelfth Amendment make a former president ineligible to run for vice president? Probably not, because no provision of the Constitution makes someone who has been twice elected president "ineligible for the office of President." The Constitution simply forbids such a person to be elected yet again. If there is no such ineligibility for a president, then there is none for a vice president.

Even if my interpretation of the text were the only possible one, that would not settle the issue. A look at the statutory history of the Twenty-second Amendment might show that its drafters and the legislators who voted for it were all intend on ensuring that no one would ever again be president for more than eight years. In that case, a court asked to apply the Twenty-second Amendment would probably look to the intent of the Amendment, rather than to its literal terms. Of course, legislative history might also show that the drafters and ratifiers meant to leave open the possibility that an experienced gray head could serve again as president, presumably in some emergency when the government had been decapitated. When they spoke of "election," maybe that is what they meant.

The only place to look for precedents would be the states. I am not a great fan of term limits in any form, but many states have them. It is quite possible that just the question we have been considering has arisen before. State court decisions interpreting such statutes would not be binding on the federal judiciary, of course, but they might be persuasive. From what little I recall about the subject, I believe that the states have tended to interpret term limits narrowly rather than broadly. In other words, if an incumbent makes a plausible argument for why a term limit should not apply, the courts will usually accept it.

I doubt that the particular anomaly we have been considering is the one that Kurt Gödel was thinking about. I am also pretty sure that Bill Clinton has no intention of running for vice president in 2004, or in any other year. Still, it may someday be important that the rules for succession to the presidency are looser than those for election. Constitutional law is full of surprises.


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