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Constitutional FAQ Answer #140

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Q140. "I heard on talk radio that Bill Clinton was planning to figure out a way to be President again. Is there any possible way this could happen?"

A. The short answer is "No."

But because this sort of rumor circulates pretty quickly across the Internet and talk radio, let's be a little more verbose and look at all the possibilities. First, though, to the subject of Clinton: my understanding is that he was asked to speculate on how he might return to the Presidency — not that he was actually planning to try to do so.

The 22nd Amendment is pretty clear — no president can be elected to the presidency more than twice, and if a Vice President assumes the presidency, he or she can be elected twice thereafter if they serve two years of the former president's term or less, or once if they serve more than two years of the former president's term.

Any scheme to get a two-term president back into the White House, then, must get around these limits. The first way is to get that person into the Vice Presidency somehow. There is one big, major hurdle to this kind of scheme, however — the last clause of the 12th Amendment prohibits anyone from becoming Vice President if they are ineligible for the Presidency. So, a two-term president cannot be elected to be Vice President, and he cannot be appointed to replace a Vice President. Any scheme that places a two-term president into the Vice Presidency as its basis fails on its face on this accord.

The other scheme is to insert a two-termer into the Line of Succession somewhere. This is a possibility — a two-termer can be elected to the House and become Speaker, or be elected to the Senate and become President Pro Tem. Both of these positions are in the Line. A two-termer can also be named to a Cabinet position, and all cabinet secretaries are in the Line. However, there is one main sticking point in this scheme — the law prohibits anyone constitutionally ineligible from assuming the Presidency. In other words, if a two-termer was Speaker of the House, the presidency would skip over that person and fall to the President Pro Tem. Since this is just a law, and can be repealed, there is a fall-back: the 22nd Amendment. Though it specifies that no one can be elected more than twice, and this would be an assumption and not an election, it could be argued that the 22nd would not apply. I think this is too strict a reading of the amendment, and if challenged, the Supreme Court would interpret "elected" to mean any means of assuming the presidency.

All other schemes assume some pretty extraordinary circumstances — none of which are likely to ever occur. These schemes are more likely to be plots in novels or storylines on 24 than anything that would happen in real life.

The only likely scenario I can see is the repeal of the 22nd Amendment. With repeal, all of the other schemes become unnecessary. But repeal also seems very unlikely.

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