West Wing, the Sequel

As Al Gore hunts for a vice presidential running mate who will reinvigorate his campaign for the presidency, one of the more amusing suggestions that keeps coming up is none other than Bill Clinton. Picking Clinton to be his No. 2 certainly would make the public sit up and notice Gore. But there's a small problem: It might just be unconstitutional.

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As Al Gore hunts for a vice presidential running mate who might reinvigorate his campaign for the presidency, one of the more amusing suggestions that keeps coming up is none other than Bill Clinton. Picking Clinton to be his No. 2 certainly would make the public sit up and notice Gore. And it has a certain weird appeal to anyone whose Gore fatigue already outstrips his or her Clinton fatigue. But there’s a small problem: It might just be unconstitutional. There is some debate about this. Political writer Richard Berke said flat-out in a recent New York Times Magazine piece that “the Constitution does not prevent a president from being elected vice president.” But others are not so sure. The question has generated a great deal of debate in recent weeks among constitutional law professors on their “Conlawprof” electronic bulletin board. Apparently finished with grading papers, these esteemed professors have been weighing the question with unabashed glee in recent weeks. THE 22ND AND THE 12TH Here’s the basic conflict: The 22nd Amendment, read literally, seems to give Clinton a green light to run for vice president, even after serving two full terms as president. “No person shall be elected to the office of the President more than twice,” the amendment, ratified in 1951, begins. Well, you say, Clinton wouldn’t be thrice elected to the presidency; this time around he would be elected vice president. But the hitch comes in the 12th Amendment, ratified in the Jeffersonian days of 1804. Its final sentence reads, “No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” OK, that cuts the other way, you say: If Clinton can’t be president again because of the 22nd Amendment, he can’t be vice president because of the 12th. But it’s not that simple. First, there’s the issue of constitutional interpretation that occasionally comes up when two separate provisions have to be analyzed together. Since the drafters of the Constitution and its amendments don’t use erasers, succeeding amendments don’t always line up, and it’s not always clear which amendment is the leading authority. The 1804 amendment was aimed at preventing a repeat of the 1800 Electoral College tie between Thomas Jefferson and Aaron Burr, and at making the vice presidency a separate office for election purposes. (Before that, the runner-up for president got the prize.) When the framers of the 12th Amendment were discussing eligibility, several commentators have said, they had more traditional factors — age, residency, and citizenship — in mind. Similarly, the authors of the 22nd Amendment had their own goal, namely preventing a repeat of Franklin D. Roosevelt’s four-term presidency. Keeping presidents from running for vice president probably did not enter into their thinking, and no mention is made of eligibility. As Georgetown Law Professor Mark Tushnet puts it, “The drafters of the 22nd Amendment didn’t imagine that they had to use language that would without any question bar the door to the Vice President Clinton scenario.” But given that we’re in a Scalia-dominated era of constitutional interpretation, it’s the words of the two amendments — not what they were trying to accomplish — that count. And by that method of looking at things, it appears that taking the 12th and 22nd together adds up to a red light for Clinton as veep. Another factor might work in Clinton’s favor, however — the constitutional equivalent of the question, “So what are you gonna do about it?” Assuming the Democratic Party actually decided in its wisdom that it wanted to place Clinton on the ballot as vice president, who would have the legal authority to challenge it in court — a voter, a member of the Electoral College, George W. Bush? If someone did sue legitimately, the next question is whether any court, including the Supreme Court, would touch such an intensely political question. In short, the questions of standing and justiciability would arise if anyone challenged Clinton’s run for the vice presidency. “I’m not a justiciability maven, but I’m not sure the Court will find this justiciable,” says Professor Eugene Volokh of UCLA School of Law and superintendent of the law professors’ bulletin board. The specter of an unelected Supreme Court blocking the people’s choice for president or vice president would give nightmares even to Clinton’s worst enemies on the Court. Thankfully, it is unlikely that the Clinton gambit will ever be more than a con law hypothetical and, as Volokh puts it, the whole issue will remain “blissfully unlitigated.” But there is another scenario that would work for Democrats nostalgic for past presidents. Jimmy Carter is tanned, rested, and eligible for a run as vice president under any constitutional amendment that might come to mind. Tony Mauro is the Supreme Court correspondent for American Lawyer Media. His new book, Illustrated Great Decisions of the Supreme Court , was published this month by CQ Press.

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