Originally uploaded at SSRN.


Does the Constitution limit the ability of a twice-before-elected President to serve as Vice-President? This question, as it turns out, presents an intricate constitutional puzzle, the solution of which requires working through four separate sub-inquiries: Is a two-term President totally ineligible for the Vice-Presidency? Is such a person barred from election to the Vice-Presidency even if that person remains appointable to that office? Is a twice-before-elected President, even if properly placed in the Vice-Presidency, incapable of succeeding from that office to the Presidency? And even if such a succession can occur, must the resulting term of service as President expire after two years? This Article addresses each of these questions by laying bare the implications of the decisive constitutional texts — namely, Article II’s enumeration of Presidential qualifications, the Twelfth Amendment’s treatment of qualifications for the Vice-Presidency, and the post-service limitations placed on two-term Presidents by the Twenty-Second Amendment. To be sure, thoughtful analysts have argued that the Constitution forecloses the possibility that a twice-before-elected President can hold (or at least secure election to) the Vice-Presidential office. Close inspection reveals, however, that that view misses the mark. In fact, the relevant constitutional provisions, their histories, and their purposes all point to the same conclusion: A twice-before-elected President may become Vice-President either through appointment or through election and — like any other Vice-President — may thereafter succeed from that office to the Presidency for the full remainder of the pending term.