A couple of questions.

[J. J.]

2) Can a president who never served as vice-president run for vice-president after their terms as president have expired?

From the XIIth Amendment:
"But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

From the XXIInd Amendment:
"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"

You'd have to cook up some very convoluted logic to argue that a person who is ineligible to be elected to the office is somehow still eligible to the office.  It certainly woud go against the clear intent of the XXIInd.

However, I think it would be possible for such a person to become acting President under the XXth Amendment in the case of a failue of either a President or Vice President to be elected, who would serve until one or the other office were to be filled.

But someone who is term limited is not constitutionally ineligible to be President. Clearly, if Bill Clinton was Secretary of State and the requisite people died, he'd become President. The 22nd amendment is merely a limitation on who can be elected President.

Of course none of that would stop the 5 partisan activist conservative Republicans on SCOTUS from vetoing Bill Clinton being elected VP. 

I'm far from sure, because there have been Secretaries of State, Kissinger and Albright, that were not eligible to be president; Kissinger was was three spots away at two points.  There usually are ineligible people in the line of succession.

I'd make the same argument about G. W. Bush, however.  In theory, in 2009, he could be elected Speaker; there isn't a requirement that the Speaker be a member.  I would question if he could become President in that circumstance.

[J. J.]

2. Yes, as long as the ex-President is still eligible to be President. If he served or was elected to two terms as President (with a term served being defined as at least half of a four year term), he cannot serve as VP; the VP must meet the same requirements as the President. Whether the ex-President ever served as VP in the past is irrelevant.

Bill Clinton and George W Bush could not be VP, but George HW Bush or Jimmy Carter could.

But the twenty-second amendment limiting a president to two terms says that someone cannot be elected more than twice.  It says nothing about becoming president through the line of succession.

I should point out, however, the Constitution is completely silent on succession beyond the VP position, which might be the reason it isn't clearer.

Further, anyone in the line of succession is "elected" at some point, even if this "election" is by one House of Congress, in the confirmation process.

We also have to look at the intent of the framers.

It is believed, for example, that the intent of the framers in the separation of powers is that a Speaker becoming President would have to resign to become "acting President," even though not specified in the Constitution.

Basically, W. J. Clinton could become President, or be VP, now.  On January 20, 2007, G. H. W. Bush will not be able to be elected President or VP, or leave office and "become" President or "acting President," again.  At that point, of all the natural born US citizens that were resident for 14 years prior, only GHW Bush and WJ Clinton will be ineligible.

[J. J.]

But someone who is term limited is not constitutionally ineligible to be President. Clearly, if Bill Clinton was Secretary of State and the requisite people died, he'd become President. The 22nd amendment is merely a limitation on who can be elected President.

Jfern is perfectly correct.

There is a difference between the language of Article II and the language of the Twenty-Second Amendment. The former states, "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, etc." The Twenty-Second Amendment, on the other hand, states, "No person shall be elected to the office of the President more than twice, etc." Thus, Article II imposes an eligibility requirement, while the Twenty-Second Amendment relates not to eligibilty but to elections.

Certainly, no one can make a reasonable argument that Bill Clinton is prohibited by the text of the Twenty-Second Amendment from succeeding to the office of President. Surely, if Clinton can succeed to the office of President, then he is not "ineligible."

Well does "eligible to the Office of President" mean "eligible for election to the Office of President?"

[J. J.]

Well does "eligible to the Office of President" mean "eligible for election to the Office of President?"

It would seem to mean "eligible to hold the Presidency," not "eligible for election."

Well, that has been somewhat unclear.  Tyler was thought of as being "acting President."  Using the logic you are suggesting, someone ineligible for election, only, would be eligible to succeed to the presidency, even if not a citizen.

I would point out that those in the line of succession are "elected" at some point, even if that "election" is confirmation by the Senate.

[J. J.]

Using the logic you are suggesting, someone ineligible for election, only, would be eligible to succeed to the presidency, even if not a citizen.

How so? Under Article II, an individual is ineligible to become President unless he is a natural born citizen.

Because Article II assumes that the only way for the President to be elected is to be elected president.

That's why the XII Amendment contains the lines, "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

If you are correct, prior to the XII, a non natural born citizen could be elected VP and then succeed to the presidency.

[J. J.]

Because Article II assumes that the only way for the President to be elected is to be elected president.

So what? The text, interpreted according to its plain meaning, suggests that no-one may be President unless he meets certain qualifications. The fact that, at some particular time, the only way of becoming President was being elected President, does not change the plain meaning of the text.

Well then, the text of the two term limit might not have anticipated someone becoming President other than by election; this could be properly considered a qualification.

[J. J.]

Well then, the text of the two term limit might not have anticipated someone becoming President other than by election; this could be properly considered a qualification.

The text clearly does anticipate people becoming President other than by election. It reads, "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." Considering the bolded text, how can it be asserted that the Twenty-Second Amendment did not anticipate succession to the presidency?

The same way that Article II prevents someone not a citizen from serving via succession.

I would argue that to be eligible to serve, the person must be eligible to be elected and that any succession is by necessity a consequence of election.

[J. J.]

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I think that you are reading too much into it. In order to be "eligible" to serve, an individual must meet the eligibility qualifications set forth in Article II--nothing more, nothing less.

I don't, especially when, as always, we look at the intent of the framers.

[J. J.]

I don't, especially when, as always, we look at the intent of the framers.

I do not believe that there is any reason to consider the intent of the framers here, or in any other case. The United States ratified the text of the Constitution; they did not ratify the intentions of the Framers.

I disagree and know of very few serious constitutional scholars who would agree.  We would not need the Federalist Papers if that was the case.

[/quote]
And even if one does wish to make decisions on the basis of the intent of the Framers, then what indication of intent is better than the text itself? The Twenty-Second Amendment's text makes it clear that no-one shall be elected to the Presidency more than twice, but it is equally as clear that an individual who has been elected President twice may still succeed to the office. And if someone may succeed to the Presidency, then he is eligible to that office. And if someone is eligible to the Presidency, he is eligible to the Vice Presidency. There is no reason to deviate from the literal meaning of the text.
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But these were written at times when the assumption was that eligibly for the presidency equaled eligibility to be elected president.

[J. J.]

Might I ask, what is the basis for this assumption? What is the basis for the claim that, when the Twenty-Second Amendment was written, eligibility for the Presidency equaled eligibility to be elected President, when the amendment itself differentiates between being elected and succeeding?

It deals with the qualifications for holding the office.  The XII Amendment makes the requirement that the VP be constitutionally eligible to be President, when chosen.  GWB or WJC could not be eligible, if chosen for VP.  This would be like saying that a 25 year old could be slipped in as president

As for:

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Sorry, legislative intent  comes into play when the text is ambiguous.  We  cannot determine it this refers to "qualification at election" or "qualification to serve."

[J. J.]

The XII Amendment makes the requirement that the VP be constitutionally eligible to be President, when chosen.  GWB or WJC could not be eligible, if chosen for VP.  This would be like saying that a 25 year old could be slipped in as president...

No it would not. There is a clause that says that no person shall "be eligible to [the Presidency] who shall not have attained to the Age of thirty-five Years." There is no clause that says that no person shall be eligible to the Presidency who shall have been elected twice.

It doesn't quite say that; it is ambiguous as to if it refers to someone "elected" or not.  Now, I would believe it refers to serving, not election, but I also believe that that the XXII Amendment says that.

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If the plain text is ambiguous, then one must simply resort to the settled rules and canons of statutory construction. The idea that the statements of one or two individuals--even individuals as distinguished as Hamilton and Madison--can

[/quote]

Intent is one of those canons.

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If we take the Twelfth Amendment literally, then no-one who is ineligible to be President is eligible to be Vice President.

But if, according to your logic, the term "eligible" means "eligible to be elected," then the term "ineligible" must also mean "ineligible to be elected." Therefore, would you agree that although Clinton could still be appointed Vice President, even though he supposedly cannot be elected?
[/quote]

No, I was just constructing a counter example (as noted above) to show the conclusion to which your logic leads.

[J. J.]

Intent is one of those canons.

As I said earlier, intent can only be determined from the text, and not extraneous sources. For example, James Kent writes in his Commentaries on American Law, "It is an established rule in the exposition of statutes, that the intention of the lawgiver is to be deduced from a view of the whole, and of every part of the statute..."

The very idea that the intent of the whole legislature can be deduced from the comments of one or two individuals is, I would argue, utterly unjustified.

I'm afraid that is quite out of step with current jurisprudence.  Case in poit is this precedent:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=196&invol=1&friend=nytimes

IIRC there was a case from the 1980's where the Court found that a late 18th Century civil rights act applied to people of Semitic origin, because the intent at the time would have classed Semitic peoples as non white.

Legislative intent is used when the statute is unclear, and could, and probably would, come into play here.

[J. J.]

I'm afraid that is quite out of step with current jurisprudence.]/quote]
Of course. Current jurisprudence has wandered very far from the original meaning of the Constitution, and from the principles established by the common law.

The Supreme Court had it right when it said in 1844, "The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself" (Aldridge v. Williams). Likewise, the Constitution is the will of the People, and the only mode in which that will is spoken is in the Constitution itself.

Here is the case I was thinking of,  SHAARE TEFILA CONGREGATION v. COBB, 481 U.S. 615 (1987)

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=481&invol=615

White noted:

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It was a unanimous decision, including Marshall and Scalia; those are two very different judicial philosophies that recognize the role of intent.

I'm sorry, but you have not demonstrated your case that intent is not relevant.

[J. J.]

I've read the decision in Shaare Tefila Congregation v. Cobb. It has nothing to do with "intent," and everything to do with the original meaning of a particular phrase--"white." It is the definition of a particular term that mattered, not the intentions of any particular lawmaker.

If you wish to claim that the definition of "eligible" has changed since the eighteenth century, then you may certainly make that argument. But there is still no justification for relying on the so-called "intent" of the lawmaker.

Here, I bolded and italicized it for you:

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[J. J.]

Arguably, either was the Courts ability to rule a law unconstitutional, as is the separation of power doctrine, using that logic.  In reality, both are constitutional.

[J. J.]

Might I ask, what is the basis for this assumption? What is the basis for the claim that, when the Twenty-Second Amendment was written, eligibility for the Presidency equaled eligibility to be elected President, when the amendment itself differentiates between being elected and succeeding?

It deals with the qualifications for holding the office.  The XII Amendment makes the requirement that the VP be constitutionally eligible to be President, when chosen.  GWB or WJC could not be eligible, if chosen for VP.  This would be like saying that a 25 year old could be slipped in as president

Prior to the XIIth, the Vice President was the person who came in second in the Presidential election, and as such had to be inherently eligible to be elected President.  With a separate ballot for the Vice President, the qualifications had to be explictly stated for that office as well.

Well, you still had the possibility of the deaths of both.  IIRC, several early VP's did die in office, though after the amendment.