Bob78164 wrote:As a practical matter, I can't imagine any judge ruling that someone who can't be elected President (and therefore can't be elected Vice President) is nonetheless eligible to serve in that office. Unless there's a lot of evidence that the framers of the Twelfth Amendment actually considered the distinction material, if push ever came to shove, there is no question in my mind what the ruling would (and should) be. --Bob
The complication is that you have several different rules, created by several different groups of people, that intersect, without anyone thinking of all the consequences.
The original rule (per the Constitution) had virtually no limitations on who could be President-- to be
eligible to be President, a person had to be
> 35 years of age, had to be a natural born citizen (or a citizen at the time the Constitution was adopted) and had to be a resident of the US for at least fourteen years. The
eligibility rule has never changed.
Clause 6 of Article II of the Constitution provides that the VP succeeds to the office of President in case of the removal of the President from office, or his death, resignation, etc., but also provides that 'the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.' Note that there are no limitations no limitations on whom Congress may provide for, hence the 'inconsistency' that gives rise to all the debates. You can assume that the 'eligibility' rules (age 35, citizenship, residency) would still apply, since there is nothing here that modifies that basic requirement, but that is as far as it goes.
The only impact of the 12th Amendment on the question is that when the Electors choose the Vice President, 'no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.' So, again, it would seem that the 'eligibility' rules (age 35, citizenship, residency) would apply to the VP as they do to the P.
The 22nd Amendment modified the rule to say that someone cannot be
elected (note the distinction between being 'eligible' as opposed to being 'elected') more than twice to the office, and no one who has served more than half of the term of another President (e.g., a VP who succeeded a resigned or deceased elected President) can be
elected more than once to the office.
The 25th Amendment was designed to provide for the replacement of a VP who leaves that office (specifically, the drive for that Amendment was triggered when Johnson succeeded Kennedy, there then being no VP; it was thought appropriate to provide for a 'constitutional' successor for the President; it is ironic that the only times it has come into effect were when Spiggie resigned in 1973, to be replaced by Ford, and when Ford succeeded Nixon upon his resignation in 1974). Note that the Amendment does not provide for ANY eligibility requirements for the VP, although again, it may PROBABLY be assumed (but not absolutely certain) that the original eligibility rules (age 35, citizenship, residency) would still apply. But it is interesting that there is NOTHING in the Amendment that requires that.
So, bottom line, what you have is a situation whereinwhichat neither Bill Clinton nor George W. Bush could actually be
elected President (well, there are those who would say that Bush was only elected once, in 2004, so maybe he could run again...), but there would not seem to be any limitations on their
eligibility for the office, so that it would seem that either of them could succeed to the office if he happened to be in the statutory line of succession-- Speaker of the House, President Pro Tem of the Senate, Cabinet Member, etc.
Ahnuld could not, constitutionally, run for President (well, I suppose he could run, but he could not serve, since the Electoral College could not vote for him due to the 'eligibility' requirement of natural born citizenship which he clearly does not satisfy), nor could he be elected to the Vice Presidency, for the same reason. Ahnuld should not be able to succeed to the office under the provisions of Clause 6 (the section that authorizes Congress to set the line of succession that includes the Speaker of the House, etc.), since Clause 6 does not modify or address the fundamental eligibility rules, and those rules are so fundamental-- and are contained higher up in Article II anyway-- that any statutory interpretation would hold that the eligibility rules run throughout. Now, you COULD make an argument that Ahnuld could get to the Presidency by way of being appointed VP under the 25th Amendment, since that does specifically amend the original Constitution and does not include any limitations on eligibility, and that he could then slip into the Presidency when the President dies, resigns, etc., but that would be a stretch, since there is nothing in the 25th Amendment that addresses the eligibility issue, such that the original three eligibility rules (age 35, citizenship, residency) should still apply.[/i]
