No, Obama Cannot Be Part Of A Dream Clinton/Obama Ticket
There is a new bizarre theory lighting up the Internet that, with Biden continuing to struggle as a presumptive nominee, Democrats are considering the prospect of a DNC engineered ticket of Hillary Clinton and Barack Obama. We have previously discussed the rumbling over months about Clinton allies pulling off a convention swap to make her the nominee. However, the story has brought back to life a dubious theory put forward a couple years ago by Michael Dorf, a professor at Cornell Law School, that Obama could constitutionally join a ticket as Vice President and even return as president. I found Dorf’s argument interesting, but this theory has taken flight in the imaginations of many on the Internet. The Washington Post column shows how the media seems to have endless space for any theory that fills a void for liberal fantasies whether it is unsupportable criminal interpretations against Trump or returning a president to power despite clear constitutional prohibitions on such a move. There is no constitutional foundation for this constitutional urban legend of Obama’s return. However this is the version of Fantasy Football for liberals. The problem is that many are taking this seriously. 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)
https://jonathanturley.org/2020/05/03/no-obama-cannot-be-part-of-a-dream-clinton-obama-ticket/