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.