Could Obama become Veep?

[AliHajiSheik]

The usage of the word "But" at the beginning of the last sentence of the 12th Amendment seems to indicate that eligibility prohibition only applies to the election of the Vice President. If it was an intention of the 25th Amendment to bar a former two-term President from being appointed to fill a Vice Presidential vacancy, then it should have included a similar provision.

The "but" is at the beginning of the declarative sentence that is not applicable only to the Electoral College. The rest of the 12th Amendment makes significant changes to Article 2, Section 1 which does deal with Elections, so it is natural that the 12th would mostly deal with them. There is no need to include it in the 25th Amendment since it was already addressed in the 12th. No need for that kind of redundancy.

 

[Cordelier]

The "but" is at the beginning of the declarative sentence that is not applicable only to the Electoral College. The rest of the 12th Amendment makes significant changes to Article 2, Section 1 which does deal with Elections, so it is natural that the 12th would mostly deal with them. There is no need to include it in the 25th Amendment since it was already addressed in the 12th. No need for that kind of redundancy.

Look at the context of the word - it's clearly conjunctive and so joins the eligibility provision with the electoral provisions. This was perfectly reasonable at the time the 12th Amendment was ratified as there was only one avenue to the Vice Presidency - to be elected. However, with the ratification of the 25th Amendment, a whole new avenue became open in cases of vacancy - nomination and confirmation - and thus if the same prohibition were to be applied, it was necessary to be re-stated.

If the 25th Amendment had included a similar provision, it wouldn't be a unique redundancy of language within the Constitution - for example, just look at how some of the language of Article IV, Section 2 and the 5th Amendment is repeated in the 14th Amendment.

 

[SILVER SURFER]

The usage of the word "But" at the beginning of the last sentence of the 12th Amendment seems to indicate that eligibility prohibition only applies to the election of the Vice President. If it was an intention of the 25th Amendment to bar a former two-term President from being appointed to fill a Vice Presidential vacancy, then it should have included a similar provision.

The Constitution is like the Bible, a set of laws open to interpretation. Yours is a reasonable one but perhaps not the only one. It's kinda like 2A - some interpret the militia phrase as limiting the right to keep and bear arms, others do not. In any case, I think such an appointment would lead to a SCOTUS case.

 

[AliHajiSheik]

Look at the context of the word - it's clearly conjunctive and so joins the eligibility provision with the electoral provisions. This was perfectly reasonable at the time the 12th Amendment was ratified as there was only one avenue to the Vice Presidency - to be elected. However, with the ratification of the 25th Amendment, a whole new avenue became open in cases of vacancy - nomination and confirmation - and thus if the same prohibition were to be applied, it was necessary to be re-stated.

If the 25th Amendment had included a similar provision, it wouldn't be a unique redundancy of language within the Constitution - for example, just look at how some of the language of Article IV, Section 2 and the 5th Amendment is repeated in the 14th Amendment.

So based on that, your conclusion is that Obama could become VP and would or would not be Constitutionally ineligible to become President?

 

[Cordelier]

The Constitution is like the Bible, a set of laws open to interpretation. Yours is a reasonable one but perhaps not the only one. It's kinda like 2A - some interpret the militia phrase as limiting the right to keep and bear arms, others do not. In any case, I think such an appointment would lead to a SCOTUS case.

I look at it this way... if the 2nd Amendment was just about protecting the right to keep and bear arms, then why include the prefatory clause at all? The same with the last sentence of the 12th Amendment... if the eligibility prohibition was envisioned to extend beyond the electoral process, then why include the word "But"?

Interpretation is one thing... but selectively ignoring entire words or clauses is another. I believe it's a constitutionally sound practice to assume that it contains no wasted words - every word is there for a reason.

I don't think the matter would come before SCOTUS at all. It'd be decided by the Congress whether or not to confirm him.... if the President and Congress were in agreement and he were confirmed as Vice President, then any legal challenges to his legitimacy would be nonjusticiable.

 

[Cordelier]

So based on that, your conclusion is that Obama could become VP and would or would not be Constitutionally ineligible to become President?

Absolutely... but only if he was appointed and confirmed in accordance with the 25th Amendment. In such a case, he would be able to succeed to the Presidency, but he'd be constitutionally ineligible to run for re-election as either President or Vice President. He'd be a lame duck the moment he took the oath.

 

[SILVER SURFER]

I look at it this way... if the 2nd Amendment was just about protecting the right to keep and bear arms, then why include the prefatory clause at all? The same with the last sentence of the 12th Amendment... if the eligibility prohibition was envisioned to extend beyond the electoral process, then why include the word "But"?

Interpretation is one thing... but selectively ignoring entire words or clauses is another. I believe it's a constitutionally sound practice to assume that it contains no wasted words - every word is there for a reason.

I don't think the matter would come before SCOTUS at all. It'd be decided by the Congress whether or not to confirm him.... if the President and Congress were in agreement and he were confirmed as Vice President, then any legal challenges to his legitimacy would be nonjusticiable.

Dunno about every word in the Constitution being there for a reason but I believe some that should be there aren't. Anyway, SCOTUS disagreed with you on 2A and that's really the only interpretation that matters. You interpret the last sentence of 12A in context, I interpret it as standalone. Either interpretation and $5 will get us a Starbucks. If Obama were appointed and confirmed as VP, I think there's little doubt it would be challenged, likely based on the last sentence of 12A. Whether SCOTUS would hear it and, if so, what the decision would be is anybody's guess.

 

[Cordelier]

Dunno about every word in the Constitution being there for a reason but I believe some that should be there aren't. Anyway, SCOTUS disagreed with you on 2A and that's really the only interpretation that matters. You interpret the last sentence of 12A in context, I interpret it as standalone. Either interpretation and $5 will get us a Starbucks. If Obama were appointed and confirmed as VP, I think there's little doubt it would be challenged, likely based on the last sentence of 12A. Whether SCOTUS would hear it and, if so, what the decision would be is anybody's guess.

I seriously doubt that the Courts would entertain a challenge to a Vice President once he had been confirmed - it'd be a non-justiciable political question. To rule against a sitting Vice President's legitimacy would not only strike against the Executive branch, but the Legislative branch as well. Congress would have been well-aware of the relevant wording of the 12th and 22nd Amendments when it cast it's vote for the nomination, and accordingly, it would be the proper venue to judge the legitimacy of the nominee for the office.

Where'd you get the idea that SCOTUS disagreed with me on the 2nd Amendment's prefatory clause? Just because the Court ruled against DC's total prohibition on firearms in Heller doesn't mean that the prefatory clause doesn't have any bearing on the right to keep and bear arms. Truth be told, if I were on the Court I probably would have voted with the majority in Heller myself (albeit in a concurring opinion) - DC did go too far in it's blanket ban on all handguns. As Justice Scalia himself said, "...the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." I believe it's a mistake to interpret the 2nd Amendment as if the prefatory clause did not exist. It does exist, and as such, it has to have some bearing on the right itself... but obviously it's scope doesn't go so far as the overly-restrictive ordnance at question in Heller stretched it.

 

[SILVER SURFER]

I seriously doubt that the Courts would entertain a challenge to a Vice President once he had been confirmed - it'd be a non-justiciable political question. To rule against a sitting Vice President's legitimacy would not only strike against the Executive branch, but the Legislative branch as well. Congress would have been well-aware of the relevant wording of the 12th and 22nd Amendments when it cast it's vote for the nomination, and accordingly, it would be the proper venue to judge the legitimacy of the nominee for the office.

Where'd you get the idea that SCOTUS disagreed with me on the 2nd Amendment's prefatory clause? Just because the Court ruled against DC's total prohibition on firearms in Heller doesn't mean that the prefatory clause doesn't have any bearing on the right to keep and bear arms. Truth be told, if I were on the Court I probably would have voted with the majority in Heller myself (albeit in a concurring opinion) - DC did go too far in it's blanket ban on all handguns. As Justice Scalia himself said, "...the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." I believe it's a mistake to interpret the 2nd Amendment as if the prefatory clause did not exist. It does exist, and as such, it has to have some bearing on the right itself... but obviously it's scope doesn't go so far as the overly-restrictive ordnance at question in Heller stretched it.

We'll have to agree to disagree on court action, or lack thereof, relative to Obama's VP appointment.

If I misunderstood your 2A position, I apologize. But I didn't say the prefatory clause doesn't exist or has no bearing. I did say

...some interpret the militia phrase as limiting the right to keep and bear arms, others do not...

Heller confirmed the latter and clarified the reason for the prefatory clause:

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

And yes, the decision went on to say the right is not unlimited, but neither is it limited to militia service.

 

[Cordelier]

We'll have to agree to disagree on court action, or lack thereof, relative to Obama's VP appointment.

That's fair... I think it'd be problematical to find someone with legal standing to file such a suit, though.

If I misunderstood your 2A position, I apologize. But I didn't say the prefatory clause doesn't exist or has no bearing. I did say

Heller confirmed the latter and clarified the reason for the prefatory clause:


And yes, the decision went on to say the right is not unlimited, but neither is it limited to militia service.

I agree that the right to keep and bear arms is an individual right that exists beyond militia service. But by the same token, the inclusion of the prefatory clause seems to indicate that there is at least some scope for Government regulation.... and any such regulatory legislation passed by Congress and challenged in the courts should therefore be judged at lower standard of judicial review than would be required to limit other Constitutional rights not qualified by their own prefatory clause.

 

[SILVER SURFER]

That's fair... I think it'd be problematical to find someone with legal standing to file such a suit, though.



I agree that the right to keep and bear arms is an individual right that exists beyond militia service. But by the same token, the inclusion of the prefatory clause seems to indicate that there is at least some scope for Government regulation.... and any such regulatory legislation passed by Congress and challenged in the courts should therefore be judged at lower standard of judicial review than would be required to limit other Constitutional rights not qualified by their own prefatory clause.

In Heller, SCOTUS held

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause.

Regardless whether the prefatory clause implies the right is not unlimited, SCOTUS went on to say exactly that. I'm not sure how one would go about qualifying or quantifying the standard of judicial review. In any case, I think legislation that seeks to limit any Constitutional right should be rigorously reviewed, prefatory clause notwithstanding.

 

[Rich2018]

A more active and involved UN General Secretary could have been a stable conduit though which the two sides could have begun to negotiate a cease-fire. We wouldn't have had all of these back-channel attempts of varying legitimacy to negotiate a peace... instead, they would have all been done on a consistent basis through which a momentum toward a viable settlement could have been found...

You think so ?

I think the Secretary General of the UN is always a passive figure. And in truth few of the world's disputes during the time of the UN have really had a solution acceptable to all parties.

The UN is just a show piece talking shop...it really doesn't do anything that any of the world's super powers object to.

...if the Bismarck had proven capable of severing Britain's sea lanes - which the Germans fully expected her to be able to accomplish - then I suspect Hess' overtures might have been more warmly welcomed in some quarters of the British establishment....

Severing the sea lanes wasn't Bismarck's mission, it was just a surface raider albeit a powerful one. The Royal Navy had several ships capable of taking it on. In addition the British could project air power into the North Atlantic, Germany could not.

The U-boat threat was FAR more serious.

...I'm talking about the Irish War of Independence....

Ireland was incorporated into the UK on January 1st, 1801.

...the Communists were the largest political party in France after the 1945 legislative election. They had an extensive political network of former Resistance fighters that carried a lot of weight with French voters. What's more, the right was divided between the anti-De Gaulleists (who were discredited by their collaboration with the Vichy regime) and the pro-De Gaulleists who were discredited by their association with De Gaulle. If the US had undercut the French right by essentially adopting the foreign policies of the French Communist Party, who is to say where it might have led?

Stalin agreed where the boundary in Europe was at the Yalta and Potsdam Conferences. After WWII he stood by and watched the Greek military crush the Greek communists. No way was France going to be become communist in the post war world.

No, the USA supported France in Vietnam because the nationalists in Vietnam were communist.

...the unstable nature of Fourth Republic French politics didn't make that a realistic possibility...

Why not, it fell apart anyway.

France couldn't win in Vietnam. The USA kept throwing supplies and money at the bankrupt French but stopped when the French asked for the bomb.

Clearly there was a limit to how far the USA would go to keep France in control of Vietnam. Which caused the French to pull its military out of NATO.

...wouldn't have worked - Castro was like Ayatollah Khomenei - he got too much mileage from blaming all of his problems on "The Great Satan"

No he wasn't a fanatic. Of course after the revolution was successful and Castro seized US assets there, the USA took it personal and to this day won't allow normal relations with Cuba...threatening to jail any US citizen who goes there.

Bobby Fischer had to seek asylum in Iceland after defying the US government

In 180 not one member of the US Olympic team dared to defy the US government and go to the 1980 Moscow Olympics.

The British government similarly banned British athletes also from going to the Moscow games. To a man they all went anyway. Not one went to prison. Sometimes a constitution doesn't help you.



How do you feel as a US Citizen that the PotUSA can ban you from going anywhere you please ?