USA Today says (here) the 22nd Amendment, which imposes presidential term limits, is ambiguous. The relevant language says,
“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.”
But this has to be read together with the 12th Amendment, which says,
“But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
So the answer appears to be a clear “no.” Then what are people arguing about? In a nutshell, whether a certain interpretation of the 22nd Amendment would fly.
That interpretation goes like this: A vice president who succeeds to the presidency hasn’t been elected to the presidency, so that provision doesn’t apply to him.
The USA Today article claims the “22nd Amendment prohibits Obama from running as president” and “ensures that if someone has served two terms as president, they are constitutionally barred from seeking the presidency again.”
Keep in mind this was written by a journalist, not a lawyer, much less the Supreme Court, which has the final say in constitutional interpretation. And you know how lawyers are about parsing words: They parse words to death.
And I’m a lawyer, so let’s get into it. For starters, the 22nd Amendment says nothing about “seeking” or “running” for president; it only says a term-limited candidate can’t be “elected,” so presumably “seeking” or “running” is not prohibited.
But there’s a catch; or rather, a potential hurdle. What if state election officials decided otherwise? Colorado refused to put a candidate under age 35 on its ballots, on the theory he couldn’t take office if elected. On the same bases, it could refuse to put a term-limited candidate on its ballots. Other states could do the same, depending on their election laws. At the very least, this would tie up ballot access in the courts for an unknown period of time — time the Democrats don’t have.
Even if Obama can constitutionally run as a 2024 vice presidential nominee, it’s a stupid idea, because if Republicans held the House and then something happened to the president, succession might well skip over him, and then Speaker “MAGA Mike” Johnson would become president. Do Democrats want to risk that?
Here, the same ambiguity exists, but with a twist: Because being elected vice president put Obama in the line of succession, is that tantamount to being elected to succeed to the office? It would be up to the Supreme Court to decide; and given the justices have right now, if I’m a Democrat, I don’t want to find out.