[Volokh] Eugene Volokh: Bill Clinton for Vice-President?

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Posted by Eugene Volokh:
Bill Clinton for Vice-President?
http://volokh.com/archives/archive_2006_06_18-2006_06_24.shtml#1150738214


   [1]A Christian Science Monitor op-ed argues that this is advisable,
   and constitutional. I don't think so, because the Twenty-Second
   Amendment's bar on a President serving more than two terms also
   applies to the Vice-President (for reasons I touch on below). But, as
   I suggested [2]here and [3]here, the matter is more complex than it
   first appears.

   Here are the relevant constitutional provisions, in relevant part:
     * The Twelfth Amendment: "[N]o person constitutionally ineligible to
       the office of President shall be eligible to that of
       Vice-President of the United States."
     * The Twenty-Second Amendment: "No person shall be elected to the
       office of the President more than twice ...."
     * Article II, § 1, cl. 4: "No person except a natural born citizen,
       or a citizen of the United States, at the time of the adoption of
       this Constitution, shall be eligible to the office of President;
       neither shall any person be eligible to that office who shall not
       have attained to the age of thirty five years, and been fourteen
       Years a resident within the United States."

   The question, then, is this: Does "constitutionally ineligible to the
   office of President" mean "constitutionally barred from being elected
   to the office of President," or "constitutionally barred from serving
   in the office of President"?

   If it means the former -- if "eligible" is roughly synonymous, for
   elected offices, with "electable" -- then Bill Clinton would be
   ineligible to the office of President because of the Twenty-Second
   Amendment, and thus ineligible to the office of Vice-President because
   of the Twelfth Amendment. On the other hand, if "eligible" means
   simply "constitutionally barred from serving," then the Twenty-Second
   Amendment doesn't speak to whether Bill Clinton is eligible for the
   office of President, since it only says that he may not be elected to
   that office. And because there's nothing in the constitution that
   makes Clinton ineligible for the Presidency, the Twelfth Amendment
   doesn't make him ineligible for the Vice-Presidency.

   My tentative answer is that "eligible" roughly means "elected." I
   realize that this is far from perfect evidence -- it's 40 years later
   than the usage -- but the earliest law dictionary the library could
   find for me, Bouvier's (1843), defines "eligibility" as "capacity to
   be elected." (I take it that, by extension, for appointed offices it
   would mean "capacity to be appointed.") If that's how the term was
   understood in 1804, then Clinton would not be eligible to the office
   of President, and thus under the 12th Amendment not eligible to the
   office of Vice-President.

   Some mid- to late 1800s cases also define eligible as referring to
   "capacity of holding, as well as capacity of being elected to an
   office" (see Carson v. McPhetridge, 15 Ind. 331 (1860)); but that's in
   the context of saying that someone who isn't eligible to an office
   isn't capable either of holding the office or being elected to it.
   I've seen no evidence that, contrary to the Bouvier's definition, a
   person would have been seen in the early 1800s as being "eligible" to
   an office when he was legally barred from being elected or appointed
   to it, and the only question related to whether he could automatically
   assume it under some succession statute.

   On the other hand, Bruce G. Peabody & Scott E. Gant, The Twice and
   Future President, 83 Minn. L. Rev. 565 (1999), argues the contrary,
   though I find myself tentatively unpersuaded by the article's
   position:

     First, it is by no means clear that the term "eligibility" as used
     in the Twelfth Amendment refers to or incorporates a person's
     reeligibility under the Twenty-Second Amendment. At the time the
     Twelfth Amendment was written there was, of course, no
     Twenty-Second Amendment; therefore, the Twelfth Amendment could not
     have originally meant to preclude someone from being Vice President
     who had been elected President twice. Rather, the Twelfth
     Amendment's reference to "eligibility" likely pointed only to the
     "eligibility" provision of Article II, Section 1, clause 4 ....

     Second, even if the Twelfth Amendment's eligibility provision is to
     be read in light of the proscriptions of the Twenty-Second
     Amendment, it could be read as affecting only persons who would
     become President. If this understanding is correct, the Twelfth
     Amendment's provision that "[n]o person constitutionally ineligible
     to the office of President shall be eligible to that of Vice
     President of the United States" has no effect on individuals who
     might simply act as President. In other words, a Vice President
     "constitutionally ineligible to the office of President" might
     occupy the vice presidency and eventually act as President, while
     being ineligible to assume that Office by becoming President
     through succession....

     Third, and most importantly, even under the most expansive reading
     of what constitutional "eligibility" might include[,] ... we do not
     believe [for reasons elaborated elsewhere in the article -EV] an
     already twice-elected President is "constitutionally ineligible to
     the office of President." ... Even if one leaves aside [scenarios
     involving succession from the Vice Presidency to the President],
     there are other non-electoral means of reassuming Office available
     to a twice-elected President [-- a person's acting as President
     under succession statutes triggered by the unavailability of either
     the Vice-President or Presesident, or becoming President if chosen
     by the House of Representatives when no candidate gets a majority
     of the electoral votes]. Thus, if the meaning of "eligibility"
     under the Twelfth Amendment was transformed with the adoption of
     the Twenty-Second Amendment, the Twenty-Second Amendment still does
     not render twice-elected Presidents "constitutionally ineligible to
     the office of President," and it therefore cannot be said that the
     Twelfth Amendment prohibits a twice-elected President from serving
     as Vice President.

   The issue, incidentally, had come up in 1964, when there was [4]talk
   of a Goldwater-Eisenhower ticket (thanks to reader David Tenner for
   the pointer).

References

   1. http://search.csmonitor.com/search_content/0613/p09s02-coop.html
   2. http://volokh.com/2004_02_29_volokh_archive.html#107833460411712131
   3. http://volokh.com/2004_03_07_volokh_archive.html#107878458749391634
   4. http://groups.google.com/groups?th=4928541c3bb792fb