Bill as Hillary's VP?

    Could Hillary Clinton pick Bill Clinton as her VP running mate?  The 22nd Amendment says only that "no person shall be elected to the office of the President more than twice" and bars any person who has served "more than two years of a term to which some other person was elected President" from being elected President "more than once."  But Bill would be elected Vice President, not President, and should Hillary die or resign from office Bill would become President but could not be elected to the office.   So, is Bill constitutionally eligible to be VP?  If not, why not?  And if Bill is eligible to be VP, does this constitutional lacuna bother anybody?

Comments

[David]

What of the 12th Amendment? Specifically, that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." The better side the argument, to me, is that Bill is "constitutionally ineligible to the office of President," by virtue of the 22nd Amendment, and therefore ineligible to the office of Vice-President under the 12th Amendment.

Not that it matters: they're both residents of New York, which would render the ticket invalid under the 12th Amendment.

[Calvin Massey]

David: According to the 22d Amendment Bill Clinton is only ineligible to be elected to the Presidency, so the 12th Amendment language you cite does not dispose of the question. It's true that they are both New Yorkers, but Bill could easily remove himself to another jurisdiction (say, Arkansas)to overcome that obstacle. Recall that when GW Bush picked Dick Cheney to be VP, Cheney was residing in Dallas as CEO of Halliburton, but Cheney quickly moved back to Wyoming in order to create the requisite diversity of citizenship.

[Vance]

I think the 12th amendment DOES bar Bill from it. Nothing in the 22nd says the "you have to be eligible to be president to be vice president" language is gone. The 22nd sez that you are ineligible if you've been president twice. Thus, Bill is ineligible to be president....and therefore the 12th makes him ineligible to be VP too.

I'm not quite sure how you are reading the 12th amendment out of the picture here, Calvin.

[Marty Lederman]

This is the first question I asked my ConLaw class this year. Calvin, you are correct that the 22d Amendment is ambiguous on this score -- ineligible *to be elected* to the office does not *necessarily* mean ineligible to the office itself. It's a great case for teaching students that they must look beyond the text to other modes of interpretation.

As for the New York habitation question under that anachronistic and ridiculous provision of the 12th Amendment: If the Clintons are both inhabitants of New York, it doesn't mean they can't run on the same ticket, or cannot both be elected; it "merely" means that the New York electors may not vote for both of them. By the way, it's not at all clear that Cheney avoided this problem by buying a house in Wyoming -- it's possible that he remained an inhabitant of Texas, too (nothing in the Constitution says it has to be one or the other), and, if so, then the Texas electors' votes for both Bush and Cheney were in fact unconstitutional. But should we care? Another interesting question.

[Clondon]

The 12th amendment does not bar the Vice President and the President from being from the same state; rather it bars any elector from casting more than one vote for a candidate from his or her own home state. So, while it would be inadvisable for a ticket to contain two people from the same state (see Cheney's removal to Wyoming from Texas in 2000)in that it would force some electors to vote other than for their chosen candidate, it is not specifically prohibited.

Another question: I see all over that people refer to the 12th amendment as the one which establishes presidential tickets. This is confusing to me. It seems from the text that instead it simply establishes two separate votes, rather than awarding the VP office to the runner-up. The text of the 12th amendment doesn't mention tickets at all. What is to prevent (other than sanity and the state law of the electors' home states) an elector from voting for the Democratic Presidential candidate and the Republican Vice Presidential candidate? Nothing in the 12th amendment seems to prohibit this.