Can a former president serve as vice president (or president)?
Sen. Bernie Sanders recently released a video in which he is seen embracing former President Barack Obama. While many viewed the video as disingenuous and/or a desperate effort to win over black voters, it still raised an interesting legal question. Given that Obama served two terms, would he legally be eligible to serve as vice president if asked to do so by the eventual Democrat presidential nominee?
According to the 22nd Amendment, “[n]o person shall be elected to the office of the President more than twice.” Moreover, the 12th Amendment provides, in part, that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
These two constitutional provisions appear to conclusively surmise that, because a person who has served as president twice is no longer eligible to serve as president, he/she is therefore ineligible to serve as vice-president pursuant to the 12th Amendment.
While this interpretation appears to be most in line with the “spirit of the Constitution,” some have offered another, much “looser,” interpretation. Specifically, some have argued that a former president could potentially serve as vice-president (and even president) despite the fact that he/she previously served two terms.
The argument revolves around the terms “elected” (utilized in the 22nd Amendment) and “constitutionally ineligible” (utilized in the 12th Amendment). Some Constitutional scholars point to the example of former President Bill Clinton, who at one point was being earmarked as a potential running mate for Al Gore.
According to Columbia University law professor Michael Dorf, Clinton was not “constitutionally ineligible” from serving as vice-president. Rather, he was simply not “electable,” a distinction he deems important. Dorf further asserted that if Clinton took office for a third time, it would not be the result of an “election,” but due to the departing president’s “death, removal, or resignation.” Therefore, since a possible third term would not be due to an “election” but possible succession, it would not run afoul of the Constitution.
Dorf’s interpretation appears to be a play on words. What Dorf seems to be saying is that the Constitution allows a former two-term president to serve as vice-president (or president) so long as he/she is not “elected” for the third term. His interpretation seems to concentrate more on how this were to happen and less on the fact that it happened at all.
While this interpretation is creative, it seems to go against the spirit of the Constitution and the intent of the Framers. The 22nd Amendment and the push for term limits primarily came to light after former President Franklin D. Roosevelt won his fourth term in office (he passed away 11 weeks into his fourth term). At the time, and as set forth in an article in History, Thomas Dewey, Roosevelt’s Republican opponent, said in a 1944 speech, “Four terms or 16 years is the most dangerous threat to our freedom ever proposed.”
The Constitution specifically states that a president cannot serve more than two terms and that a person who is ineligible to serve as president cannot serve as vice-president.
This is a good idea and seems to be most in line with the Framers’ intent. It also serves to protect against the possibility of tyrannical rule, which the nation should avoid at all costs.
This article is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. You should not take, or refrain from taking, any legal action based upon the information contained in this article without first seeking professional counsel.
Mr. Hakim is a writer, commentator and a practicing attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Western Journal, American Thinker and other online publications.
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