From: wdstarr@athena.mit.edu (William December Starr)
Newsgroups: talk.politics.misc
Subject: Nixon and the loophole in the 22nd Amendment
Date: 10 Oct 92 17:15:26 GMT
Organization: Northeastern Law, Class of '93


In article <1992Oct10.025042.13312@news.ysu.edu>, 
ae642@yfn.ysu.edu (Kelley Miller) said:

In a previous article, deguc@holein1.Corp.Sun.COM (Bob Deguc) says:

> > Besides, per the 22nd amendment, Nixon cannot run for
> > President....  [Bob De Guc]
>
> Er...are you sure about that?
>
> I seem to remember a report (albeit some years ago) that
> constitutionally, Nixon could indeed become president again, as he
> did not serve fully 1/2 of his second term...
>
> Any enlightenment?

Time to crank up my old B.S. (how incredibly appropriate! :-) in
Political Science... in fact, you're both right.  Nixon cannot run for
President _and_ Nixon can become President again.  It goes like this:

(1) The 22nd (ratified 2/27/1951; it contained a clause exempting
anyone who was already President when the Amendment was proposed or
became operative, so the then-sitting President, Truman, was immune
[not that he'd shown any interest in running for a third term in '52
anyway]) only covers the qualifications for _election_ to the office
of President.  Thus, under the 22nd Nixon, who was elected to the
office of the President twice, cannot be elected to that office again.

(That Nixon served less than half of his second term is irrelevant
here; that part of the 22nd applies to people who become President in
mid-term.  The idea is to disqualify from election anyone who's
already been elected twice _or_ has been elected once and has served
more than two years of a term to which someone else was elected
President.  Note that it was relevant to Ford, though: because he had
served more than two years of the term to which Nixon was elected in
1972, he would have been ineligible to run again in 1980 if he'd won
in 1976.  I doubt, though, that the fact that Ford would have become a
lame duck President upon winning in 1976 had any serious effect on the
voters' choices that year.)

(2) The last line of the 12th Amendment says "But no person
constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States."  Clearly,
then, Nixon can't be elected Vice-President either.  He _probably_
also couldn't be nominated by the President and approved by the House
and Senate to fill a vacancy in the Vice Presidency (the way that
Representative Gerald Ford, R.-Mich., was).  It's never been made
absolutely clear that that clause of the 12th covers qualification for
the office of VP no matter how the office is attained rather than only
covering qualification for _election_ to the office.  However, that
question is moot to this little thought exercise, because...

(3) The order of succession to the Office of President is controlled
by Congressional legislation (Article I, paragraph 6, gives the
Congress this power).  Under the most recent legislation, enacted
sometime during the 1950s, I think, the order of succession is: (1st)
Vice President, (2nd) Speaker of the House, (3rd) President Pro Tem of
the Senate, and then the various Cabinet Secretaries (plus the
Attorney General, who isn't disqualified just because he doesn't have
the word "Secretary" in his job title), in the order of the age of
their agencies, with State considered to be older than Defense even
though they were (I think) created at the same time.

(Note: Why is it that the President Pro Tem of the Senate on the list,
but the President of the Senate isn't?  Because the President of the
Senate is the Vice President of the United States, and it would be
kind of silly to have the same person appear twice in the list.)

So what does all this mean with regard to Nixon?  It means that he
can't be elected President, he can't be elected Vice President, and he
probably can't be appointed and approved to fill a vacancy in the Vice
Presidency.  But he still _can_ either (a) be elected to the House and
become its Speaker, (b) be elected to the Senate and become its
President Pro Tem or (c) be nominated to a Cabinet post by the
President and be approved by the Senate and then, following the death,
resignation, impeachment or incapacity of the President and of
everyone ahead of him (Nixon) in the Order of Succession, ascend to
the Office of President.  (Note that he would, of course, be an
instant-lame-duck President, unable to run for re-election.)

It ain't bloody likely, but it _could_ happen.

-- William December Starr <wdstarr@athena.mit.edu>
Newsgroups: talk.politics.misc