Douglass MacKinnon triggered this frenzy with a Hill column entitled A Hillary Clinton-Barack Obama Ticket to Replace Joe Biden? The column is based on the earlier column by Philip Bump, citing Dorf, that unleashed the fantasies of liberals worldwide. Dorf previously argued for the constitutionality of an Al Gore-Bill Clinton ticket in 2000.
In fairness, MacKinnon’s column was meant not to foster the effort but to explore how “Desperate times do indeed call for desperate measures” for some in the Democratic party. (MacKinnon is himself a longtime Republican).
The problem in my view is that this renewed discussion is not just unconstitutional, it is perfectly delusional.
Let’s cut to the chase. The 12th Amendment states clearly and unambiguously that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” Period. Barack Obama is constitutionally ineligible to be President so he is constitutionally ineligible to be Vice President. That ineligibility is equally clear in the 22nd Amendment that states in part:
“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.”
Dorf works hard to avoid the obvious with the wildly creative in analysis. In his Washington Post in 2015, he suggested that we could bring back President Obama by adopting narrowly reading the word “elected.” He suggested “The drafters of this language [of the 22nd Amendment] knew the difference between getting elected to an office and holding an office. They could have just said ‘no person may hold the office of president more than twice.’ But they didn’t.”
The suggestion is facially at odds with the history and intent of the 22nd Amendment but such views are rarely given close scrutiny these days. The original version of the Amendment did not use solely the reference to “elected.” On January 3, 1947, House Judiciary Chairman Earl Michener and Speaker of the House Joseph Martin introduced House Joint Resolution 27 that stated:
“no person shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.” (emphasis added)
One could claim that the change of the language reflected a narrowing to allow an end-run by engineering a succession for additional terms by selecting a barred president as vice president. There is no support for that proposition. First, such circumventions were well known back then as they are today with authoritarian figures like Vladimir Putin. Second, the change in the language was clearly standard tightening of the text and the record shows that the focus was to block leaders remaining in power beyond two terms. What Dorf is suggesting is that the Framers of that amendment wanted to stop any president from serving more than two terms but knowingly left a loophole to make the amendment meaningless with a calibrated circumvention.
The change occurred in the Senate with an amendment from Senator Warren Magnuson who wanted a more simple construction to avoid “complicated legal language” that “could be easily understood by everyone.” The concern was focused on the possibility that a president might have been elevated to the presidency before his or her first election (the opposite of what Dorf is referencing). Magnuson did not want to penalize such leaders who first became president by an act of nature or without any manipulation. He said the clear intent was to stop a President from “perpetuating himself in office.” As Senator Joseph Tydings noted, there was a concern that “a man could be prohibited from being elected President more than once, provided that he had served more than 1 year prior to the time he was elected President…”
Others did not even want to yield on a president serving the remainder of the term of his predecessor. The result was the compromise in the amendment to allow more than eight years but to limit that period concerning an earlier elevation to the office.
What Dorf is suggesting is to take someone who has already been elected twice and then allow him to serve for additional years. There is nothing in the language or the record to support such a clearly conflicted interpretation. I should note that I do not object to such theories being raised as the foundation for provocative academic discussion. Moreover, Dorf acknowledges that this is a creative argument and does not misrepresent the authority. Rather, he relies on an expansive use of the ruling in Powell v. McCormack on what constitutes “eligibility.” I believe that analysis is off-the-mark, but it is an interesting debate. My concern is the presentation of such a theory as a compelling or even plausible option.
There is little chance that such an effort will be made or that it would ever be seriously considered seriously by a reviewing court. However, it is the fantasy element that is most striking in the current discussion. There is a bottomless cavity in coverage for such theories that allow either the removal (or incarceration) of Trump or the return of figures like Obama. One could dismiss this is just the junk food of media analysis, but there remains a striking lack of balance in some media outlets in not only replicating such theories but airing few alternative views. It often seems like the easiest way to get published is to write a column that says Trump is close to being frog marched to a federal penitentiary or Democrats can operate free of express constitutional prohibitions in retaking the White House.