Patterico's Pontifications

2/13/2008

A Paranoid (but masochisticly fun to contemplate) Fantasy From An Unabashed Clinton Hater: Perpetual Clinton Presidencies

Filed under: 2008 Election,Constitutional Law — Justin Levine @ 5:13 am



[posted by Justin Levine]

Scott Grant and Bruce Peabody contemplated the growingly prescient question over a year-and-a-half ago.

The end political result that they call for makes me hurl. But in terms of pure Constitutional interpretation based on the plain text of the 22nd Amendment, I regretfully concede that their legal argument ultimately stands up to scrutiny in my own mind.

32 Responses to “A Paranoid (but masochisticly fun to contemplate) Fantasy From An Unabashed Clinton Hater: Perpetual Clinton Presidencies”

  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.

    My reading of the 22nd Amendment says that while Bill could become VP and succeed to the partial term of a President, he could only do so for 2 years. After that, he’s gone.

    Steverino (3cbef4)

  2. The two terms refers to the amount of time of another’s term which the person had filled prior to the election. It doesn’t apply to the term in question.

    Suppose Bill is elected VP and sworn into office on January 20. On January 21, for whatever reason, the President is incapable of continuing in office. Presumably Bill would become President and would continue as such for the next 3 years, 364 days.

    aunursa (b5501e)

  3. The two terms

    Oops, I meant two years.

    aunursa (b5501e)

  4. I disagree, Patterico. I believe that if someone cannot be elected to the Presidency according to the 22nd Amendment, that makes them “constitutionally ineligible” for the Presidency. Therefore, according to the 12th Amendment, they are also ineligible for the office of Vice-President.

    It is true that the 22nd does not prevent “a former president from again assuming the presidency by means other than election, including succession from the vice presidency”. But to jump from there to saying that therefore said former president would not be “constitutionally ineligible” for the Presidency is to abandon the plain meaning of the word “ineligible”. The 22nd does not say that Clinton would be ineligible for VP, but it does say that Clinton would be ineligible for President. And therefore, the 12th says that he would also be ineligible for VP.

    Robin Munn (cc08f2)

  5. Since the 12th amendment says that “… no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”, how can this possibly even be an issue?

    ObeliskToucher (66523a)

  6. Good answer, Robin :-)

    ObeliskToucher (66523a)

  7. No, if you want a perpetual presidency, the thing to do (that is not forbidden by the Constitution, at least at the moment) is to get your party in control of the House. Then you get your Perpetual President elected as the representative of a safe district, and your party (as the majority in the House) votes him in as Speaker. Then the President and VP both resign the day after the inauguration, and your PP has become President again.

    … Except that that wouldn’t work either, because of 3 U.S.C. § 19(e): “Subsections (a), (b), and (d) of this section shall apply only to such officers as are eligible to the office of President under the Constitution.” Since the PP has already held two terms of office as President, he is ineligible under the Constitution and therefore stricken from the line of succession. So even getting him elected Speaker of the House, or appointing him to any of the cabinet positions in the line of succession, won’t work either.

    Robin Munn (cc08f2)

  8. Oops – It was Justin, not Patterico, who posted this. My apologies for getting the wrong name in comment #4.

    Robin Munn (cc08f2)

  9. Robin (and Obelisk): Read the plain text of the 22nd Amendment again, then re-read the arguments contained in Grant & Peabody’s article. Rather than rebut their contention, you simply seemed to have ignored it. I will spell it out again for you here –

    The plain text of the 22nd Amendment states (emphasis added): “No person shall be ELECTED to the office of the President more than twice…”

    Bill Clinton would not be ELECTED to the office of President in a theoretical 3rd term. He would, instead, be elected to the office of VICE-PRESIDENT and then SUCCEED to the office of the Presidency (and bypassing the ‘election’ barrier) if/when Hillary becomes incapable of carrying out her duties as the elected President.

    Therefore, there is no conflict with the actual text of the 22nd Amendment – and thus there is no conflict with the 12th Amendment.

    You can pull a “liberal Supreme Court Justice” and argue that this would violate the “spirit” of the 22nd Amendment (and you’d be right in that regard) – but it would not violate the TEXT.

    That is the challenge posed. Your response seems to simply ignore it. It comes down to a plain and reasonable interpretation of the terms ‘elected’ and ‘the office of the President’ as used in the Constitution. That is what you must address. To me, the word ‘elected’ means elected (as opposed to ‘appointed’ or ‘granted’ or ‘succeeding to’) . To me, the phrase ‘the office of the President’ means the office of the President (as opposed to the office of the Vice-President or any other office that is clearly distinguished in the Constitution). Pretty simple stuff from my perspective.

    Justin Levine (6c5c93)

  10. What I’m arguing is that if someone cannot be elected, then they are ineligible. Isn’t that the meaning of “ineligible”?

    I understand Grant and Peabody’s argument. I understand that the 22nd only talks about election, as opposed to succession or other methods of becoming President. Nevertheless, I believe that the meaning of the word “ineligible” in the 12th covers the scenario that Grant & Peabody (and you) posit.

    The 22nd is indeed as narrow as you state. I believe the 12th is, however, broader than you claim. Since you disagree, please explain how you read “ineligible” to not include the meaning “cannot be elected”.

    Robin Munn (cc08f2)

  11. But Bill Clinton might help … defuse arguments that Mrs. Clinton is too liberal.

    This statement alone is sufficient reason to doubt the judgement, not to mention sanity, of the authors.

    sherlock (b4bbcc)

  12. Why does this seem like asking what the definition of “is” is?

    barfs

    Dana (3e4784)

  13. To put it differently:

    I believe that electing Bill Clinton (or, for that matter, George W. Bush) to the office of Vice President would violate the TEXT, not of the 22nd Amendment, but of the 12th.

    I did understand Grant and Peabody’s argument, and did attempt to refute it. Where it fails is not in their understanding of the 22nd amendment, which I agree with, but in their understanding of the 12th. They assert that the 22nd does not prevent Bill Clinton from being elected to the VP. I agree. They go on to say that “[i]f this view is correct, then Clinton is not “constitutionally ineligible to the office of president,” and is not barred by the 12th Amendment from being elected vice president.” This is where I disagree.

    They claim that Bill Clinton, who is barred from being ELECTED to the office of President, is not INELIGIBLE for the office of President because there is a route other than election to get him there. I claim that on the contrary, because Bill Clinton may not be ELECTED to the office of President, that means that he is INELIGIBLE for the office of President, and therefore the 12th applies to him.

    Now, I do understand that the dictionary definition of “ineligible” says “legally disqualified to hold an office or position”, and so it could be argued that this means that someone is only disqualified if under no conceivable circumstances could they ever hold the office. That is the approach that you, and Grant & Peabody, have taken to its meaning.

    I, however, hold that if someone cannot be elected, then that counts as being ineligible. I believe that linguistics is on my side here — “eligible”, after all, means “able to be elected” by the very construction of the word. The dictionary also backs up that reading: “legally qualified to be elected or appointed to office” (dictionary.com), “qualified to participate or be chosen” (Mirriam-Webster).

    Let’s look at it yet another way. By the axioms of logic, the proposition “if A, then B” necessarily implies “if not B, then not A”. Here A is the proposition “Bill Clinton is eligible to the office of President” and B is the proposition “Bill Clinton may be elected to the office of President”.

    If Bill Clinton is not eligible, then he is ineligible and therefore the 12th Amendment applies.

    Robin Munn (cc08f2)

  14. From Mirriam-Webster:

    elect, v. From Latin electus, past participle of eligere to select. To select by vote for an office, position, or membership.

    eligible, adj. From Late Latin eligibilis, from Latin eligere to choose. Qualified to participate or be chosen.

    (Note that there are other meanings as well; for simplicity’s sake, I have included only the relevant ones. Check for yourself whether I omitted anything important).

    “eligible” originally meant “can be elected or chosen”. (“elect”, after all, means “choose”). The phrase “eligible receiver” also falls under this meaning — he is not disqualified by the rules from being chosen to receive the pass. Ineligible means that the is disqualified from being chosen.

    As I said, I do think that you can read “ineligible” as requiring very broad grounds of disqualification: that you’re only ineligible if under no conceivable circumstances would there be any way to reach the position. But I find that reading to require a stretch of linguistics similar to arguing about what the meaning of “is” is.

    I prefer to understand the word “ineligible” in the plain meaning that the word’s own structure gives us. Not eligible — not able to be elected. If you are eligible, you can be elected. (That’s the meaning of the word). Therefore, if you cannot be elected, you are ineligible. (That both follows from logical axioms and is also the obvious meaning of the word).

    Hopefully I’ve said enough to be clear about why I believe the 22nd Amendment and the 12th Amendment do work together, and between them do not allow the loophole that Grant & Peabody believe they do.

    Robin Munn (cc08f2)

  15. Robin,
    Your refutation may be correct, but I’m still going to have trouble sleeping tonight.

    j.pickens (53ee7a)

  16. Oh, and I believe the law is replete with uses of the term “ineligible” which have nothing to do with elections. Such as appointment to government offices which are not elected.
    The interpretation of the 12th amendment which, as Robin claims, would prevent election to the Vice Presidency for a two term President, forces a look at the 22nd amendment to take force. Other than the 22nd Amendment, there is no other reference to an exclusion on these grounds in the Constitution. And the 22nd Amendment refers only to Election, so I think Robin needs to look at the link between the two Amendments more closely to convince me not to lose sleep tonight.

    j.pickens (53ee7a)

  17. I think that under a literal reading of Section 4 of the 25th Amendment we could have a dead person for President.

    nk (616f8b)

  18. Now we know how Chelsea and Hillary will keep it in the family another 16 years or more.

    voiceofreason2 (590c85)

  19. nk – How? You’ll have to explain better, because I’m not seeing it. If the President dies, Section 1 would apply. If the VP dies, how could he “transmit … [a] written declaration” as Section 4 requires? So a dead VP could not become President. If you’re thinking of some other scenario, please explain.

    j.pickens – Yes, the word “ineligible” does cover many ways of being chosen. Elected by popular vote is one of them, chosen by the President (and approved by the Senate) would be another. I believe the word is inclusive, though, rather than exclusive. If you’re disqualified from being elected, you’re ineligible. If you’re disqualified from being appointed, you’re ineligible.

    Grant & Peabody are arguing that “ineligible” has very strict requirements: that to be ineligible, you have to be unable to be elected, selected, appointed, or in any other way reach the office. I don’t deny that this is a possible reading of the dictionary meaning, and I’m afraid that won’t help your insomnia much. However, I do argue that this is not the clear meaning of the term in common usage. I claim that the clear, commonly-understood meaning of “ineligible” is that if the rules disqualify you from being elected, then you’re ineligible.

    To put it yet another way: I claim that if the rules disqualify you from being elected/selected/appointed/promoted/whatever, choose one, then you’re ineligible. Grant & Peabody (and Justin) claim that if the rules disqualify you from being elected/selected/appointed/promoted/whatever, all of the above (and only all of the above), then you’re ineligible.

    Would the Supreme Court rule the same way? (Because if this was ever tried, you can just bet it would end up before the Supreme Court). I don’t know for certain — it would depend on how many justices believe in reading the Constitution according to its plain, obvious meaning.

    Whoops, sorry — just gave you (and myself) insomnia again.

    Robin Munn (cc08f2)

  20. nk #17. I don’t think we could have a dead person as President.

    From Article 2 of the US Constitution (emphasis added:

    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

    Once someone dies, he ceases to be a resident of the US, so he wouldn’t qualify under Article 2.

    (tongue firmly in cheek here)

    Steverino (e00589)

  21. Now, now, Steverino, are you saying Washington, Jefferson, Lincoln and Roosevelt (Teddy) are *furriners*?

    nk – How? You’ll have to explain better, because I’m not seeing it. If the President dies, Section 1 would apply. If the VP dies, how could he “transmit … [a] written declaration” as Section 4 requires? So a dead VP could not become President. If you’re thinking of some other scenario, please explain.

    We are talking about the Clintons, here, right? Where does it say when the written declaration has to have been written? Or who wrote it — the President or someone else on the President’s behalf? Same thing with “transmits*. Why can’t he transmit it via Ouija board. That’s writing, isn’t it? And just exactly what is the meaning of *written* or *declaration* anyway? 😉

    nk (616f8b)

  22. Or “dies”? If no coroner or bureau of vital statistics issues a death certificate …. Again 😉

    nk (616f8b)

  23. nk –

    *slaps forehead*. You’re absolutely right. It only says when the message must be transmitted, not when it must be written. And leaving a letter with someone saying “In exactly twenty-one days, send this to the Senate” would count as transmitting it to the Senate once it arrived. Even avoids the problem of proving the source of an Ouija-board “transmission”.

    Heh. Quite a funny scenario to contemplate. Thanks for the laugh, I needed that.

    Robin Munn (cc08f2)

  24. Perhaps minds will rest a little easier here if they knew that Clinton was asked about the possibility of being a VP publicly (on Larry King–where else when you’re dealing with a Clinton?) and answered that

    1) the idea really really appealed to him (and, from the way the questions were asked, it also really appealed to Larry King)

    but

    2) he had gone into with lawyers, and the combined opinion (including his, and one assumes Hillary’s) was that he could never serve as VP because he’s already been President for two terms

    therefore

    3) he would never be VP

    IOW, as long as he doesn’t see this article, we’re safe :)

    And if he does change his mind, someone can alway find the Larry King video and air it to show up his mendacity (as if we needed more proof of his mendacity).

    kishnevi (8731ef)

  25. Now, now, Steverino, are you saying Washington, Jefferson, Lincoln and Roosevelt (Teddy) are *furriners*?

    No, just that they aren’t residents of the US. I’m hoping their current residences are pleasant and not overly warm :)

    Ex-patriates of the highest order, I suppose.

    Steverino (e00589)

  26. Oh, it gets better were Huckabee to be elected President. Evangelicals do not believe that anyone “dies”. They believe that they achieve eternal life. And Huckabee has said that he wants to Constitution to conform to (his idea of) Christian beliefs. 😉

    nk (616f8b)

  27. kishnevi,
    Oh, yeah, I feel MUCH better knowing that WJC made comments on Larry King indicating he would never be VP. I’d need to see the exact transcript, however, as we know how fun parsing the former (and maybe future?) president’s statements can be.
    I seem to recall an interview with Jim Lehrer in the late ’90’s, something about “I did not have….”

    j.pickens (53ee7a)

  28. And after Hillary and Bill get through with their next eight years, Chelsea will be coming of age. She’s 26 and will be “eligible” to run for POTUS in about 9 years.

    Mom and Dad should have the bucks to back her, too.

    We’d have to start using the term “dynasty” to describe our presidents.

    Bush Dynasty or Clinton Dynasty.

    Ain’t no way that’s going to happen, gents, so your paper cut arguments are wasted.

    AKT (368f89)

  29. Mr. Pickens–
    As I indicated, the video would at least be on file to show him as a liar (again.)

    However, his manner and tone of voice as he spoke about the subject indicated that if he really thought he could get away with it, he would do it.
    And if even he thinks he can’t get away with something…
    But IOW the idea is not so wild and crazy that Bill Jeff C. hadn’t already thought of it, but is so wild and crazy that he’s given up hope of doing it.

    kishnevi (794b50)

  30. AKT: If the lovely Mrs Clinton wins the presidency [barf!], and her darling daughter moves back into the White House, and Mrs Clinton then wins a second term [double barf!], Chelsea Clinton would be the obvious Democratic presidential nominee in 2016, based on her sixteen years of White House experience! [dry heaves!]

    After all, if the American people are accepting Mrs Clinton’s claim that her years as First Lady [puke on my shoes!] count as governing experience, why wouldn’t the First Daughter’s?

    Dana (c36902)

  31. There’s also the residency requirement. It would be great to get it on the record that Bill and Hillary dont reside in the same state!!

    chas (fb7ad4)


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