Stephen Gillers, a law professor at New York University, has an unconventional suggestion for John Kerry — name Bill Clinton as his running mate. In a New York Times op-ed published today, Gillers responds to the constitutional concerns, but misses a key point.
Gillers makes a compelling case for Clinton, touting the former president’s experience as a steward of a strong economy. Gillers also notes that Kerry could dispatch Clinton for a series of “plum assignments” for which Clinton would be well-suited — Mideast peace, national health care, and racial equality. So far, so good.
Gillers, meanwhile, is aware of constitutional concerns, but says they can be “disposed of easily.” I think he’s mistaken.
The Constitution does not prevent Mr. Clinton from running for vice president. The 22nd Amendment, which became effective in 1951, begins: “No person shall be elected to the office of the president more than twice.”
No problem. Bill Clinton would be running for vice president, not president. Scholars and judges can debate how loosely constitutional language should be interpreted, but one need not be a strict constructionist to find this language clear beyond dispute. Bill Clinton cannot be elected president, but nothing stops him from being elected vice president.
True, if Mr. Clinton were vice president he would be in line for the presidency. But Mr. Clinton would succeed Mr. Kerry not by election, which the amendment forbids, but through Article II, Section 1 of the Constitution, which provides that if a president dies, resigns or is removed from office, his powers “shall devolve on the vice president.” The 22nd Amendment would not prevent this succession. So much for the constitutional obstacles.
As John Edwards might say, Not so fast, Stephen Gillers. This analysis of the 22nd Amendment may be sound, but it overlooks the 12th Amendment.
Bill Clinton is no longer eligible for the presidency; the 22nd Amendment makes that fairly clear. But what Gillers fails to mention is that the 12th Amendment prohibits candidates who cannot run for the presidency from running for the vice presidency.
Specifically, the amendment says, “[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
I can appreciate that Gillers knows more about constitutional law than I do, but wouldn’t this be a disqualifying factor for Clinton making Kerry’s ticket?