The title of a famous essay by Jonathan Swift and that of a Tuesday New Republic article by Brian Beutler each starts with “A Modest Proposal.” There are, however, many differences concerning the two pieces. One is that Swift’s was a satire, whereas Beutler’s is a fantasy. Another is that pretty much anyone who somehow took Swift’s proposal seriously would find it horrifying, while Beutler’s suggestion -- that the 2016 Democratic ticket should consist of Hillary Clinton and Barack Obama -- will horrify mostly conservatives (and opponents of dynastic politics who already were upset over the prospect of a Hillary v. Jeb race).
As for whether this scheme would pass constitutional muster, Beutler opined that “whether its adopters intended it or not, the plain language of the Twenty-Second amendment doesn’t prohibit a former two-term president from succeeding a sitting president and serving out the remainder of her term. It merely prohibits him from running for a third. By using the term ‘elected’ instead of ‘eligible,’ its authors created a loophole large enough for a Clinton-Obama ticket to coast to victory.”
From Beutler’s piece (bolding added):
Because Hillary Clinton is white and no longer young, a strain of political thought holds that she might lack Barack Obama’s inherent appeal to new and minority voters and thus that she won’t be able to ride the Democratic party’s demographic advantages to easy victory in 2016…
The challenge, then, is to make sure Clinton’s age and ethnicity don’t discourage Obama’s youthful, diverse supporters from turning out in November 2016. Fortunately, there’s an easy way to make sure that doesn’t happen. Clinton simply has to select Barack Obama as her running mate.
LOL, you might be thinking. Obama can’t be the vice president. That would place him at the top of the line of succession, and the Constitution limits him to two terms. Clinton would end up in court before she ended up in the White House if she pulled something like that.
I’ll grant that if Democrats nominate Barack Obama to be their vice presidential candidate next year, it would be somewhat controversial. But here Democrats can borrow tactically from the literal-minded conservatives who have seized on syntactic oddities to unravel Obama’s domestic agenda. As a purely textual matter, the Constitution merely prohibits Obama from being elected to a third term. It doesn’t necessarily prohibit him from actually being president again, should Hillary Clinton no longer be able to serve. And were he on the ticket, Clinton’s potential liabilities with Obama loyalists would disappear…
There are three sections of the Constitution that prescribe limits on who can be president and vice president: Article II, the Twelfth Amendment and the Twenty-Second Amendment. While the former two limit who is “eligible” to serve—natural born citizens, 35 or older—the Twenty-Second Amendment begins “No person shall be elected to the office of the President more than twice.”
Whether its adopters intended it or not, the plain language of the Twenty-Second amendment doesn’t prohibit a former two-term president from succeeding a sitting president and serving out the remainder of her term. It merely prohibits him from running for a third. By using the term “elected” instead of “eligible,” its authors created a loophole large enough for a Clinton-Obama ticket to coast to victory through…
I gather Republicans wouldn’t be terribly happy about all this. The Supreme Court’s five conservative justices might even disallow it. But they’d have to abandon their textualist predilections to do so. Reince Priebus v. Barack Obama would become the Bush v. Gore of our time, except in this instance, the Court wouldn’t be able to frustrate the will of the voters outright.
Related: Last month, Steven Waldman suggested in the Washington Monthly that if Hillary's elected, Obama should be her first Supreme Court nominee.
