Vice President Barack Obama?
Democrats swooned over the 44th President's White House visit Tuesday. What was! What could be! The debate over whether he could be confirmed or elected as Vice President has resumed.
The question was first raised in 2015, if not before. Could then-President Barack Obama, having been elected twice, run as then-Vice President and putative Democratic nominee Joe Biden’s running mate?
Betting sites focused on the 2020 election gave it 2 percent odds. And those same sites are taking bets for 2024.
It was actively raised among Democrats and their allies in the media, especially the Washington Post and Twitter, nearly seven years ago.
Democrats at the time were eyeballing their best options for keeping the White House in 2016. Obama reportedly remains wildly popular among most Democrats. The last available public polling, nearly five years ago, was 59.5% as of May 9, 2017. That’s 3 percent higher than right after he left office in January that year, a point he hadn’t reached since he first took office.
We know how 2016 turned out.
Fast forward to Tuesday, when Obama returned to the White House for the first time since January 20, 2017, to a swooning reception to honor the 12th anniversary of the Affordable Care Act, better known as Obamacare. Never mind that key taxes and mandates imposed by the law have since been repealed. Its partisan enactment resulted in Republicans gaining a historic 63 seats in the US House of Representatives that Fall in 2010.
It didn’t take long for many self-employed Americans short of Medicare eligibility to discover they would pay $30,000 or more in premiums and deductibles before the first dollar of Obamacare coverage. Or that most of the reduction in the number of uninsured was due to an expansion of Medicaid. Or that Obama lied when he said, repeatedly, that “if you like your doctor, you can keep your doctor, period.” Oops. I doubt that was brought up at the White House yesterday. The media seemed to ignore it as well.
Speculation returned immediately in social media fever swamps whether Obama could save Joe Biden’s presidency by serving as his Vice President. Never mind that Kamala Harris might have something to say about that. The photos of Harris shadowing Obama, turning her back to Joe Biden at the White House, were priceless. As for Joe Biden. . .
But could Barack Obama legally be nominated and elected (or confirmed by Congress) to serve as Vice President and assume the presidency if something happens to Joe Biden during his presidency? Could the Democratic party legally nominate Obama to run as Vice President with Joe Biden in 2024?
Democrats can dream, I guess. The questions are largely academic. No one seriously believes Obama is remotely interested in being Vice President, much less President again, although his substantial ego obviously enjoys the attention. Harris, not so much.
But the answer is a definite maybe. Scholars disagree, but a plain reading of the Constitution suggests it is entirely possible, even plausible. The 22nd Amendment disqualifies Barack Obama from seeking election as President, but not Vice President. The 12th Amendment stipulates that the Vice President must meet the same qualifications to serve as the President, but does that include the ability to seek election to the office? From the Washington Post in 2015:
Michael Dorf is a professor of constitutional law at Cornell University. In 2000, he argued that an Al Gore-Bill Clinton ticket could withstand legal scrutiny. And when we spoke by phone on Thursday, he said that he stood by that argument.
The rough outline of his argument is this: The 22nd Amendment doesn't say you can't be president for more than two terms. It says you can't be elected president twice. If a Biden-Obama ticket won (which we'll get to), and tragedy were to befall Joe Biden, Barack Obama could become president, according to the letter of the law (which we'll also get to), since he wasn't elected to the position. As such, Obama is not constitutionally ineligible to serve as president.
More from Dorf in 2015:
"The 22nd Amendment, to my mind, is a sort of stand-alone provision," he continued. And that provision says "elected." "The drafters of this language knew the difference between getting elected to an office and holding an office. They could have just said 'no person may hold the office of president more than twice.' But they didn't."
Here's the interesting part, though: Dorf also notes the distinction between running for the vice presidency and becoming vice president. I asked him where a challenge would arise to a Biden-Obama candidacy, and his response was that it would come up at the Electoral College -- or once Congress was asked to certify the already-voted-upon results. There's a completely valid argument to be made that the country would never elect Barack Obama as vice president, of course, in part because is seems to violate the spirit of the 22nd amendment. But if we did, it wouldn't actually become a constitutional question until after Election Day. Remember: We don't elect the president and vice president; the Electoral College does.
Remember that the Electoral College actually elects the President and Vice President under the Constitution. The US Senate certifies the election of the Vice President; the US House certifies the election of the President. If no one has a majority of the electoral votes, then the Senate picks the Vice President, and the House chooses the President. It gets complicated after that, so I’ll stop. Again, it’s all academic.
So yes, Democrats, you probably can nominate and even elect Barack Obama as Vice President in 2024. In the meantime, if you can find a way to usher Kamala Harris out of her job, Biden could nominate Barack Obama to fill her vacancy. Under the 25th Amendment, a simple majority of both houses is all that Obama would need to be confirmed.
Some might say an Obama candidacy for Vice President or his election to the post would violate the “spirit” of the 22nd Amendment. That’s not certain, but one thing is: the Supreme Court would be called on to offer its own judgment. Theoretically, the Senate could refuse to certify Obama’s election as Vice President. Meanwhile, Democratic pining for Obama’s return suggests they realize just how bad things are for them now, politically.
They at least have that right.