Two-Time Presidents and the Vice-Presidency

INTRODUCTIONCan a former two-term President seek and serve in the vice-presidency? Non-lawyers often assume that the answer is no, and prominent constitutional scholars agree.1 The analysis of these experts begins with the Twelfth 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."2 In addition, the Twenty-Second Amendment prohibits any twice-elected President from again securing election to that office.3 And because voters thus cannot put a twice-before-elected President back into the presidency, such a person is-these analysts conclude-"ineligible to the office of President" and therefore not "eligible to that of Vice-President" under the disqualifying terms of the Twelfth Amendment.This argument has a surface appeal. But it masks subtleties in the law. The most significant complication arises because the Twelfth Amendment makes access to the vice-presidency hinge on whether the would-be candidate for that position is "ineligible to the office of the President."4 This choice of words matters because it interlocks the Twelfth Amendment not with the Twenty-Second Amendment, but with the preexisting terms of Article II, Section 1, Clause 5, which specifically address whether a person is "eligible to the Office of the President."5 What is more, the Article II clause imposes no term limit of any sort on presidential service. Instead, it requires only that a President be (1) a natural-born citizen, (2) at least thirty-five years of age, and (3) a resident of the United States for at least fourteen years.6 Because twice-before-elected Presidents (such as George W. Bush or Bill Clinton) continue to meet each of these three (and only three) textuallyspecified eligibility requirements, such persons are-according to proponents of the they-can-run position-not "ineligible" to be President for purposes of the Twelfth Amendment. Therefore, they remain "eligible" to seek and to hold the vice-presidency. 7To be sure, the first sentence of the Twenty-Second Amendment specifies that "[n]o person shall be elected to the office of the President more than twice."8 But that clause, so the argument goes, does not address who is "ineligible" for the presidency; rather, it addresses only how many times an eligible person can be "elected" to that office. Therefore, so the argument continues, the Twenty-Second Amendment casts no light on who is "eligi ble" to be Vice-President under the Twelfth Amendment. And that is all the more the case because a person can become President either by way of election or through other means.9In an article published in 1999, Bruce G. Peabody and Scott E. Gant navigated their way through this maze of clauses in advancing the claim that the Constitution permits election to the vice-presidency of a twicebefore-chosen President.10 The Peabody and Gant article does much useful work by mapping out the basic textual route to this conclusion. But its treatment of the subject leaves a great deal of the key legal ground uncovered. To begin with, the article does not consider new arguments and analyses that have cropped up in recent years, including pronouncements offered by such well-credentialed observers as Judge Richard Posner and even former two-term President Bill Clinton.11 No less important, that treatment fails to distinguish carefully among four separate legal questions that are in the picture here-namely (1) whether a twice-before-elected President is wholly ineligible to become Vice-President; (2) whether a twice-beforeelected President is partly ineligible to be Vice-President in the sense that such a person may be appointed-but not elected-to that office; (3) whether a twice-before-elected President, if properly placed in the vicepresidency, can thereafter succeed to the presidency; and (4) whether a twice-before-elected President who does succeed to the presidency from the vice-presidency faces any durational limit on the resulting term of presidential service. …