Before we get into Brian Beutler’s much-discussed new piece, let’s stipulate some simple truths. First, Hillary Clinton has been a presidential candidate for roughly two days, so speculating about her possible running mate is premature. Second, we can say with absolute certainty that Clinton, if she’s the Democratic nominee, will not invite President Obama to be her running mate. Any discussion along these lines is intended as little more than fun poli-sci chatter.
That said, Beutler makes the case anyway, reflecting on the Democrat’s unique position and electoral needs in the 2016 cycle.
[There’s] no reason Democrats should tinker with a winning formula. If Clinton can turn out Obama’s voters, she will win.The challenge, then, is to make sure Clinton’s age and ethnicity don’t discourage Obama’s youthful, diverse supporters from turning out in November 2016. Fortunately, there’s an easy way to make sure that doesn’t happen. Clinton simply has to select Barack Obama as her running mate.
Brian acknowledges the potential constitutional pitfalls – he calls the scenario “somewhat controversial” – but he seems confident it’s surmountable. “As a purely textual matter, the Constitution merely prohibits Obama from being elected to a third term,” the piece argues. “It doesn’t necessarily prohibit him from actually being president again, should Hillary Clinton no longer be able to serve.”
Arguments like these have come up before. Eight years ago, a handful of pieces were published urging then-candidate Barack Obama to choose Bill Clinton as his running mate. Four years earlier, some made the same suggestion to John Kerry.
Let’s be very clear: this isn’t going to happen. Barack Obama will not be on the ballot in 2016. But I’ve received a few reader emails about this, wondering what is and isn’t possible, so let’s engage in the thought experiment, just for the sake of nerdy entertainment.
At first blush, I’m not convinced Clinton, assuming she’s the nominee, will have to worry too much about Obama’s youthful, diverse supporters staying home in the fall of 2016. But even putting that aside, I’m reasonably confident Obama’s constitutionally ineligible.
In fact, readers who’ve been with me a very long time might recall that we first explored the possibility back in 2007. Let’s revisit.
The 22nd Amendment says, “No person shall be elected to the office of the president more than twice.” Brian’s argument, in effect, is that there’s a loophole: if Obama were Clinton’s vice president, and Obama is somehow elevated due to Clinton’s inability to serve, he wouldn’t be elected to the office, he’d simply assume the office. Obama can’t run for president a third time, the argument goes, but he could still serve as president.
But then there’s the 12th Amendment, which says, “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
So, if Obama is ineligible for the presidency under the 22nd, then he’s ineligible for the vice presidency under the 12th, right? Yes, I think so.
The 12th Amendment, in context, is directed at the criterion for a president’s eligibility laid out in Article II – natural born citizen, 35-years-old, and a 14-year resident within the United States. When the amendment says no one who’s “ineligible” for the presidency can be the vice president, it was speaking specifically to these qualifications.
The 22nd Amendment, meanwhile, enshrined the notion of a “two-term tradition” into the Constitution, following FDR’s success in winning four times. It does not address, or at a minimum, was not intended to address, presidential eligibility.
I’m of the opinion, though, that the 22nd Amendment effectively added a fourth condition to a prospective president’s qualifications. Who’s eligible to be president? 35-year-old, natural-born citizens, who have lived in the U.S. for at least 14 years, and who haven’t already served two terms as president.
That may not have been the point of the amendment, but I’d argue that was the practical result.
Again, before conservatives start complaining, “Liberal writers fantasize about third Obama term!” let me re-emphasize that I’m looking at this solely as an academic exercise. It’s equally applicable to Bill Clinton and George W. Bush for the exact same reasons: they were both elected to two full terms. If folks want to speculate about Jimmy Carter as a possible 2016 running mate, it’d be a very different constitutional question.
But if you’re hoping to see Obama receive V.P. consideration, my advice is: lower your expectations accordingly.