« Sneak in Contracts | Main | Teaching Federal Income Tax to the Current Generation of Law Students »

Tuesday, February 25, 2020

Vice Presidential Trivia

Suppose Bernie Sanders is the Democratic nominee for President. He decides to go with a young, exciting running mate and picks Alexandria Ocasio-Cortez. An objection is raised that goes something like this: She turns 31 in October. A President must be at least 35. She is therefore not eligible to be Vice-President.

Is this correct? Arguably yes. One thought is that the Vice-President must fulfill all of the eligibility requirements of President from day one. But arguably no. A Vice-President who is ineligible to be President may simply not become President if the President dies--the Speaker of the House does instead. Or maybe she can be VP because she would turn 35 during a Sanders presidency (i.e. the term for which she would elected). 

Posted by Gerard Magliocca on February 25, 2020 at 09:04 AM | Permalink

Comments

The Twelfth Amendment says:

"But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

So, I'm unsure what the dispute is here.

Posted by: Joe | Feb 29, 2020 9:00:16 PM

One thing I learned after posting this is that John Breckenridge, James Buchanan's Vice-President, was 35 when he was elected and 36 when he took office. He's the youngest Vice-President.

Posted by: Gerard | Feb 25, 2020 1:26:23 PM

I'm having trouble with the premise of the question. If Sanders picks AOC as his running mate, isn't AOC just ineligible to be the VP by virtue of losing the electoral college in November?

Posted by: Derek Tokaz | Feb 25, 2020 1:18:55 PM

Howard, yes, sort of dicta. Why? because it doesn't specify the stipulations, but rather, refers to somewhere else, and not specified as such. Here I quote (12th amendment):

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

End of quotation:

So, it doesn't state, the terms and conditions, but, refers to somewhere else. And the whole clause, deals with something else.

And again, how does it look, when it is deliberately and specifically stated, here again:

" No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

End of quotation:

So, has been done for the president, but not for the vice.Why not for the vice then, one may wonder?

That's it.

Thanks

Posted by: El roam | Feb 25, 2020 10:30:35 AM

Like Madison, I don't see this as a close question. If you are ineligible to be President, you are ineligible to be Vice President.

Posted by: Sykes Five | Feb 25, 2020 10:15:04 AM

The dicta of the constitutional text?

Similar conversations were floating around in 2000 over whether Al Gore could have Bill Clinton as his running mate. There the carry-over qualification was from the 22d Amendment, but same basic conclusion.

Posted by: Howard Wasserman | Feb 25, 2020 10:11:31 AM

Jas. Medison, but what you have quoted is dicta. By the way written or emphasized. Doesn't specify deliberately,what are the terms or personal conditions or criteria, for becoming vice president. With having the intention to prescribe it. Read well the whole clause.Although one may rely on it, for interpreting it.

Posted by: El roam | Feb 25, 2020 9:48:16 AM

Nice try. The 12th Amendment plainly states "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." This is not altered by the 25th Amendment. The 25th Amendment plainly states that "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President." It also provides "the Vice President shall immediately assume the powers and duties of the office as Acting President" in the event of the latter's disability. It doesn't say that the vice president becomes president/acting president only if she possesses the constitutional qualifications, or conversely, it does not say that the vice president does not become president/acting president if she does not possess the constitutional qualifications. The statutory succession is more of a doomsday scenario, since the 25th Amendment also requires the president to nominate a a new vice president for congressional confirmation whenever the latter office is vacant. (And even if all of the foregoing is incorrect, consider if the Republicans won the House in 2022; would the public (and electors) who voted for Sanders want a Republican to become president? I think not.) I appreciate that everyone thinks it's cool to be Seth Barrett Tillman, but this "trivia question" ignores both plain text and constitutional structure.

Posted by: Jas. Madison | Feb 25, 2020 9:34:01 AM

Well, that is a good one. And great illustration for the useless perception of the so called: Originalism or textualism, or any kind of formalism simply. For, if the personal conditions are so well described concerning the president, here I quote:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

End of quotation:

Then, one may assume, in accordance, that it doesn't touch the vice president, for, if so well defined for president, then, the "missing is speaking" by itself so. But, it doesn't make sense, since, they ( the founders) have prescribed clearly that, I quote:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

End of quotation:

So, what would be the right interpretation then ? The vice can become, in advance so determined , a president . But, not meeting the personal and formal conditions simply .That is why there are courts simply. History, wouldn't help either. Why ? because whatsoever, you can't learn it , from what is clearly prescribed.So, there is no room whatsoever, for any formal and rigid attitude.

Thanks

Posted by: El roam | Feb 25, 2020 9:24:54 AM

Post a comment