Could Former President Obama Run For Vice President?

Over the last week, I received a number of inquiries--mostly from non-lawyers--about an out-of-the-box idea: what if, instead of dropping out of the race or continuing with the status quo, President Biden were to swap former President Obama for Vice President Harris as his running mate? These inquiries would appear to have been mooted as a practical matter by President Biden's announcement yesterday that he is dropping his bid for re-election. Nonetheless, exploring the question may prove interesting. (And not insignificantly, I did most of the work on today's column yesterday morning, before the announcement, so repurposing it for the new reality allowed me to avoid throwing that work out!)

Suppose that the Democrats were to decide that running Obama as their VP candidate gives them the best chance of winning November's election. Perhaps they announce publicly that Obama will be given unprecedented authority as VP or even that the person at the top of the ticket (whether it's Harris or someone else) will resign shortly after inauguration, thus leading to Obama's ascendancy to the Presidency. (You can see how that would have made more sense before yesterday afternoon, but let's not let practical reality get in the way of a good thought experiment.)

By now you might be wondering why the queries about Obama's eligibility to run for VP and then take over as President were directed to me. It's because in 2000 I wrote a column arguing that although the 22nd Amendment prevents a two-term President from being elected to a third term, it does not prevent one from serving a third term. I opined that a Gore-Clinton ticket would be constitutional. Go ahead. Read the 22nd Amendment. You'll see that under its plain language, that's correct.

Hold on. What about the 12th Amendment? It states (among other things) that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." No problem. As I argued in that 2000 essay, the 22nd Amendment doesn't state a rule of eligibility for serving in the Presidency; it states a rule about who can be elected to that office; and someone who is elected to the Vice Presidency but then steps into the office of the Presidency to fill a vacancy is not elected to the Presidency. So the 22nd Amendment provides nothing for the 12th to attach to.

I acknowledged in 2000 that my plain-text reading of the 22nd Amendment does not give full effect to its animating purpose. It's hard to imagine that the framers or ratifiers of that provision would have been okay with a person serving three, four, five, or more consecutive or non-consecutive terms as President, so long as their party went through the technical fix of having him run for Vice President and then playing musical chairs. However, I wrote in 2000, the text is plain enough that it should control.

In the last few days, however, I've begun to reconsider that conclusion, mostly because I've been trying to harmonize it with my view of Section 3 of the 14th Amendment. Readers will recall that earlier this year, in Trump v. Anderson, the Supreme Court reversed the holding of the Colorado Supreme Court that Donald Trump was ineligible to run for the Presidency because he had "engaged in insurrection or rebellion." All nine Justices thought that state courts are the wrong forum for Section 3's enforcement, and the majority went further to hold that it is inoperative absent implementing legislation by Congress.

In the Section 3 Trump case, the Court did not directly address an objection that many had voiced to this line of reasoning: states routinely enforce other qualifications for office. For example, if a 30-year-old wanted to be listed on the Presidential ballot, a state could and would keep him off on the ground that he doesn't satisfy the minimum-age requirement and wouldn't age into eligibility during a four-year term in office.

Some lawyers and commentators who sought reversal of the Colorado Supreme Court decision had a response. Section 3 of the Fourteenth Amendment, they said, does not state a requirement for running for office, only for holding it.

But that only goes so far. For example, the Natural Born Citizenship (NBC) Clause says only a natural born citizen "shall be eligible to the office of President." That's about eligibility to serve, not necessarily eligibility to run. Yet the courts have rejected this sort of hair-splitting, allowing the conversion of an eligibility requirement into an election/ballot requirement. For example, then-Judge Gorsuch affirmed Colorado's exclusion from the Presidential ballot of a naturalized (and thus not natural-born) citizen, specifically rejecting his argument that the NBC Clause isn't about ballot eligibility. Even assuming there's a difference between a qualification to run for office and a qualification to serve in office, Gorsuch wrote for the court, "a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office."

That strikes me as right. It's part of why I think Trump v. Anderson was wrongly decided, even though the Court did not directly rely on the election/service distinction.

To be sure, one might think that the case for giving Section 3 of the 14th Amendment a purposive reading is stronger than the case for giving one to the 22nd Amendment. But reflecting on the 22nd Amendment question in light of the Section 3 question, I no longer discount the purposive reading as clearly as I did in 2000. Accordingly, I now think it is a much closer question whether the 22nd Amendment bars a two-term President from seeking the Vice Presidency.

Meanwhile, a ticket with Obama as VP and a figurehead at the top of the ticket could backfire spectacularly. Suppose that Figurehead/Obama ticket runs and wins but then Figurehead resigns some time after the inauguration. Now Obama starts issuing executive orders and taking other actions as President. One could well imagine an immediate lawsuit by a Republican-affiliated actor claiming that some action by Obama that affected that actor was invalid because Obama’s not really President.

I’m not confident that this Supreme Court would reject the claim. Notwithstanding the conservatives’ professed commitment to textualism, I could see five (or six) Justices saying that Obama is ineligible to be President under a purposive reading of the 22nd Amendment. The Court would thus effectively declare the Presidency vacant. The holding would imply that under the 12th Amendment Obama was never validly Vice President either, so both offices would be open. If Republicans still held the House, Mike Johnson would then become President. Because one cannot know in advance whether the Figurehead/Obama ticket would have sufficient coattails to take the House, the plan has a built-in risk.

There is also a practical political reason to back off of the formalist reading of the 22nd Amendment. As Professor Buchanan explained here on the blog earlier this year, in the medium term, the most likely scenario for deploying it would involve Donald Trump. Imagine that Trump is elected to a second term this year and then decides to run again in 2028, this time with Vance heading the ticket and the expectation of a switcheroo after inauguration to give Trump a third term.

Yes, Trump would be 82 and thus already the oldest President in history, but it's hard to imagine that would deter him from seeking to hold onto power. And he would have less reason to worry than the Democrats do that a Supreme Court with a super-majority of Republicans would deem his ascension a violation of the 22nd Amendment. His only real concern would be the fear that if Democrats controlled the House in 2029, they would not approve his VP pick after he vacates the office to assume the Presidency, leading to a Democratic Speaker becoming President should Trump die in office. But that's a concern for the Republican Party as an institution, not for Trump personally. Trump cares only about what affects him personally, while the rest of the Party will lick his boots even if he charts a politically perilous course for it.

Thus, although the specter of a third Trump term does not drive my reconsideration (though not exactly repudiation) of my 2000 view of the 22nd Amendment, it would be a beneficial side effect of rejecting it.