March 27, 2008

Ex-Presidents Serving Again

Stupid Question ™
Aug. 3, 2000
By John Ruch
© 2000

Q: Since US presidents are barred from serving more than two terms, are they also barred from holding other offices in the line of succession (like vice president) that could result in the them becoming president again?
—Amanda Scheiderer

A: In the literal language of the Constitution, presidents actually aren’t barred from serving more than two terms. They’re barred from being elected to more than two terms.

This subtle difference is what makes it almost certainly legal for an ex-president to hold any job in the line of succession. Al Gore is free to make Bill Clinton his running mate; George W. Bush could dump Dick Cheney and put his own dad on the ticket.

The 22nd Amendment says that “no one shall be elected to the office of the President more than twice.” This language is very deliberate: The original proposal barred someone from serving or being chosen more than two terms, but was revised to cover only election.

The amendment also says that someone who has held the office for more than two years of someone else’s term (through succession) can then be elected president only once. This covers someone who succeeds to the presidency and is then elected; it does not cover someone who is elected and then succeeds.

If Gore were elected with Clinton as his vice president, then stepped aside and let Clinton serve a third term, it would apparently be legal.

If that seems like a big loophole, it’s because the Constitution is full of them. Most law on succession is ad hoc (the 22nd Amendment was basically a Republican panic over Franklin Roosevelt’s four terms in office), quite recent and far from complete.

The law does not address our scenario because it’s never come up. No ex-president has ever held any job in the line of succession. No one in the line below the vice president (currently including speaker of the House, president pro tempore of the Senate, and cabinet members) has ever moved via succession to the Oval Office.

The vice presidency is the only truly controversial job in this whole discussion, because the Constitution defines it as a “spare president” position. You can’t even become vice president unless you’re Constitutionally eligible to be president.

All other jobs in the line of succession do not require that jobholders be qualified for the presidency.

The line of succession isn’t that important anyway; both the 20th and 25th Amendments have provisions that theoretically allow any US-born citizen over 35 to become president in certain cases.

For example, the 25th lets the president fill a vice presidential vacancy with almost anybody. This became reality when Nixon nominated Gerald Ford, who was then House minority leader, and who became president when Nixon resigned. (Ford then nominated Nelson Rockefeller, a private citizen and former governor.)

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