Category Archives: term limits

Michael Rosin: “Professor Tribe Is Mistaken – Donald Trump Cannot Be Elected Vice President”

authoritarian threats in US, term limits

A guest post from Michael Rosin, drawn from “Why Did the Framers of Section 3 of the Twentieth Amendment Employ the Term Failed to Qualify?” (forthcoming in South Texas Law Review) and from material in a longer manuscript on the history of presidential term limit amendments:

Harvard Law Professor Laurence Tribe has weighed in on the issue of whether Donald Trump can serve a third term.

Anyone discounting a 3d Trump term per the 22d am + the 12th am is thinking magically: The 22d dsn’t bar *serving* a 3d term, only being *elected* 3 times. The 12th dsn’t bar running for VP unless “ineligible” to serve as Pres, but Trump isn’t ineligible. QED!

Professor Tribe is mistaken. Donald Trump cannot be elected President again and therefore he cannot be elected Vice President.

The Framers employed eligible to mean capable of being elected.

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. U.S. Const., art. II, § 1, cl. 5 (emphasis added).

In Article II eligible means capable of being elected in an election. It does not mean capable of holding office following election.

There is simply no way to interpret eligible in the following two passages from the Convention Records to mean anything other than elected.

[Gouverneur Morris] He saw no alternative for making the Executive independent of the Legislature but either to give him his office for life, or make him eligible by the people.

[Alexander Hamilton] He is not re eligible, he will therefore consider his 7 years as 7 years of lawful plunder. Had he been made re eligible by the legislature, it would not have removed the evil, he would have purchased his re election.

Neither the people nor the legislature can make someone thirty-five years old, a natural born citizen, or fourteen years a resident of the United States. Indeed, how could the legislature provide such qualities to someone seeking reelection after having already possessed these qualities previously?

On September 10, 1787 the Convention delivered the following text to the Committee of Style and Arrangement:

No Person except a natural born Citizen, or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President: nor shall any Person be elected to that office, who shall be under the age of 35 years, and who has not been in the whole, at least 14 years a resident within the U. S.

The Committee returned the final text replacing elected with eligible.

The Supreme Court has explained that “the Committee of Style … was appointed only ‘to revise the stile of and arrange the articles which had been agreed to. . . .’” (at 538) This rule of interpretation tells us that the Committee did not change the content of the Presidential Eligibility Clause.

In Article II eligible means capable of being elected in a presidential election.  Given the election of a Vice President as a residue of the original presidential election process described in Article II, there was no need for the Convention to state presidential eligibility criteria in language that explicitly and separately extended to a Vice President on whom the “power and duties of the said office [of President], shall devolve” in case of a presidential vacancy. (U.S. Const. art. II, § 1, cl. 6) The Vice President had been a candidate in the presidential election.

The Twelfth Amendment’s introduction of designation of electoral votes provided the impetus for a separate Vice Presidential Eligibility Clause for the office that had already been created by Article II. Understanding the near synonymy of eligibility and electability in its text it must be read to mean

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

 If that is the case then the Twenty-Second Amendment’s Presidential Ineligibility Clause implies that

No person who has been elected to the office of the President 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 and has been elected to the office of the President once can subsequently be elected President or Vice President.

Professor Tribe is mistaken. Donald Trump cannot be elected President again and therefore he cannot be elected Vice President.

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Tamping down the third term hype for Trump

term limits

Donald Trump recently told NBC News’s Kristen Welker that is “not joking” about seeking a third term, followed by this exchange:

NBC News asked about a possible scenario in which Vice President JD Vance would run for office and then pass the role to Trump. Trump responded that “that’s one” method.

“But there are others too,” Trump added.

Asked to share another method, Trump simply responded “no.”

Now, for the media to be feeding factual scenarios to Trump seems, well, not the wisest move. But more to the point, such a method is constitutionally suspect, in my view, apart from its outlandish factual nature (e.g., someone willingly giving up the office of the presidency for… an 82-year-old to get back in the saddle).

As I told the Associated Press:

Derek Muller, a professor of election law at Notre Dame, noted that the 12th Amendment, which was ratified in 1804, says “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

Muller said that indicates that if Trump is not eligible to run for president again because of the 22nd Amendment, he is not eligible to run for vice president, either.

“I don’t think there’s any ‘one weird trick’ to getting around presidential term limits,” Muller said.

In addition, pursuing a third term would require extraordinary acquiescence by federal and state officials, not to mention the courts and voters themselves.

He suggested that Trump is talking about a third term for political reasons to “show as much strength as possible.”

Now, there’s no question there is potential constitutional ambiguity here, as Professor Brian Kalt has discussed. But scholars like Professor Michael Dorf a quarter century ago were bolstering the idea of a Gore-Clinton ticket in 2000:

Thus, if Clinton were to be elected Vice President, and ascend to the Presidency based on, for example, Mr. Gore’s resignation, then nothing unconstitutional would have occurred. Clinton would have been elected to the Presidency only twice — though he would serve as President thrice. Under the Twenty-Second Amendment, that is perfectly permissible.

. . . But in seeking the Vice-Presidency — a job, in John Nance Garner’s unforgettable phrase, “not worth a bucket of warm spit” — Clinton would hardly be bidding for dictatorial powers.

Similar claims were made by Professor Brian Gray and elsewhere. But in my earlier scholarship, I found this interpretation weaker than the one advanced by Matthew Franck:

It follows from the 22nd Amendment that Bill Clinton, being “constitutionally ineligible” to be elected president, is ineligible to become president by another route.  He is, in short, ineligible to be president, and therefore ineligible to become vice president under the 12th amendment.

I agree. But it’s worth noting that if–and I think it’s still a big if–such a gambit arose, there are tremendous complexities in its implementation. Not the least of which is the fact that after Trump v. Anderson, I believe the Court expressly left open the opportunity for states to review qualifications of presidential (and vice-presidential) candidates outside of the 14th Amendment and exclude candidates on that basis. Vice presidential nominations and ballot access deadlines for them occur in late summer, giving an exceedingly truncated window for review–and, frankly, one that may leave a major party without a vice presidential candidate on the ballot in several states with the approval of the United States Supreme Court. (Setting aside, of course, the will power of someone like J.D. Vance relinquishing the presidency.)

There are lots of scenarios that have been running over the last couple of months, not worth rehashing here. My belief–and perhaps I’ll be proven wrong–is that such bluster is bluster to give the illusion of strength of a lame-duck president. There’s no question that since the 22d Amendment, second-term presidents–think Nixon and Watergate, Reagan and Iran-Contra, Clinton and Lewinsky, Bush and Iraq–have found the later days of their administration mired in scandals or congressional oversight. The next presidential candidates in Congress are licking their chops at the opportunity for taking the nomination.

There remains to be seen, of course, what is bluster and what turns into reality. But even in reality, there are major legal and practical hurdles to such gambits. And it is worth spending the time to think about those hurdles, rather than “suggesting” them to the president as entirely reasonable and viable possibilities in an interview.

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“Will fairer districts mean longer Ohio legislative terms?”

redistricting, term limits

Cincinnati Enquirer:

Ohio lawmakers coalesced at the last minute to approve a deal that could make its legislative maps fairer and more competitive — and could open the way to examine letting those legislators serve longer in office.

With redistricting reform headed to Ohio voters in 2015, many legislators believe now is the time to review the state’s term limit restrictions.

 

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Breaking: Justice Ginsburg Fixes Her Texas Voter ID Dissent After ELB Notes Error

election administration, Supreme Court, term limits, The Voting Wars, voter id, Voting Rights Act

Yesterday I had a post noting an apparent small error in Justice Ginsburg’s dissent in the Texas voter id case. The Justice said a Veterans ID card was not acceptable for voting, but it appears that it is acceptable.

Today the Justice issued a revised dissent. SCOTUSBlog reports:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

 

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Federal Court Denies Wisconsin’s Request for Stay in Voter ID Case, Explains Basis for Decision

election administration, term limits, voter id, Voting Rights Act

The federal district court in Frank v. Walker has issued this detailed ruling denying Wisconsin’s request for a stay pending appeal in the voter id case.  A stay would have allowed Wisconsin to use its id law in the upcoming election.  Wisconsin has already sought a similar stay in the 7th Circuit, and the 7th Circuit has asked for a response from plaintiffs by Aug. 19.

The district court ruling today not only denies the stay but defends the ruling against a number of attacks.  I think the order makes it somewhat more likely that the 7th Circuit will not grant Wisconsin’s request for a stay pending appeal.

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Nevada Supreme Court Wants Response to Petition for Rehearing in Term Limits Case

term limits

Las Vegas Review Journal:

In the law, a motion for reconsideration is the longest of shots, the least hale of Hail Marys, the 60-yard field-goal attempt with less than a minute on the clock, the full-court jump shot at the buzzer, the … well, you get the idea. It almost never works.

But there are those extremely rare cases where it’s successful, where a court will cop to having made a mistake, overlooked a material fact, or misapplied past precedents. And that’s precisely what former Reno Councilwoman Jessica Sferrazza is counting on with her latest legal effort.

Last week, the Nevada Supreme Court ruled that a person’s service on a local government body — such as the Reno City Council — is limited to 12 years under the state’s term-limits law, regardless of whether one is serving as a council member or the mayor. Thus, having served 12 years on the council, Sferrazza and all similarly situated officials throughout the state, are now banned for life from running for mayor. (Sferrazza and Reno Councilman Dwight Dortch contended — quite correctly, in my view — that mayor was a separate office, and thus a person could run and serve another 12 years, just as a person can serve 12 years in the Assembly and then run for and serve another 12 in the state Senate.)

Today, Sferrazza’s attorney — Bradley Schrager of Wolf, Rifkin, Shapiro, Schulman & Rabkin — filed a motion for reconsideration with the Nevada Supreme Court, contended that justices had overlooked relevant precedents in their ruling.

And now the Court wants a response.

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Asymmetric Polarization in Congress

legislation and legislatures, political parties, political polarization, Remedies, tax law and election law, term limits

Political Wire:

Harry Enten looks at statistics that rank members of Congress on a scale from -1 for most liberal to 1 for most conservative and finds Senate and House Democrats have been fairly stable at -0.4 since 1992.

“There has, however, been an increase in partisanship in the House, and it truly is ‘asymmetrical’. The Republican House caucus has been becoming more conservative every year since 1977, whether or not House Republicans are winning or losing elections. Republicans have climbed from 0.4 on the DW nominate scales after the 1992 elections to near 0.7 in the last congress. That type of charge towards polarization is historically unusual over data that stretches back 130 years.”

Likewise, Senate Republicans “have slowly and become more conservative in their roll call votes by moving from about 0.3 to 0.5 on the scale.”

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Las Vegas Journal Rev. Ed Writer Says He Met with Noncitizens Registered by Unions to Vote and Pressured to Vote

term limits, The Voting Wars, voter registration

Glenn Cook: “Last week, I met with two immigrant noncitizens who are not eligible to vote, but who nonetheless are active registered voters for Tuesday’s election. They said they were signed up by Culinary Local 226. They speak and understand enough English to get by. But they don’t read English especially well. They say the Culinary official who registered them to vote didn’t tell them what they were signing and didn’t ask whether they were citizens. The immigrants said they trusted that the union official’s request was routine, thought nothing of it and went about their work. Then the election drew closer. Then the Culinary canvassers started seeking them out and ordering them to go vote.”

This definitely requires further investigation.

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“Paul Ryan Presents GOP Term-Limits Dilemma”

legislation and legislatures, term limits

Roll Call: “Republican chairmanship term limits are bringing a dilemma for the party in the next Congress: whether to break the rules for a promising intellectual leader of the party while denying his ambitious colleagues the same opportunity. Rep. Paul Ryan, chairman of the House Budget Committee, is term-limited at the end of this Congress, having ascended to the ranking member position on the panel in 2006. Republicans count time served as chairman and ranking member toward term limits. GOP officials and aides said they expect significant pressure for the Steering Committee to grant Ryan, the public face of House Republicans on budget and economic issues, a waiver from the six-year term limits rule, allowing him to stay on.”

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