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Abstract: Does the Constitution limit the ability of a twice-before-elected President to serve as Vice-President? This question presents an intricate constitutional puzzle, the solution of which requires working through four separate sub-inquiries: Is a two-term President wholly 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 to the presidency? And if such a succession occurs, must the resulting term of service as President expire after two years? This Article addresses each of these questions by exploring the implications of the decisive constitutional texts-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. Some 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. However, the text and history of the relevant constitutional provisions point to the opposite conclusion: A twice-before-elected President may become Vice-President, either through appointment or through election, and thereafter succeed from that office to the presidency for the full remainder of the pending term.
INTRODUCTION
Can a former two-term President seek and serve in the vice-presidency? Non-lawyers often assume that the answer is no, and prominent constitutional scholars agree.1 The analysis of these experts begins with the Twelfth Amendment, which provides that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."2 In addition, the Twenty-Second Amendment prohibits any twice-elected President from again securing election to that office.3 And because voters thus cannot put a twice-before-elected President back into the presidency, such a person is-these analysts conclude-"ineligible to the office of President" and therefore not "eligible to that of Vice-President" under the disqualifying terms of the Twelfth Amendment.
This argument has a surface appeal. But it masks subtleties in the law. The most significant complication arises because the Twelfth Amendment makes access to the vice-presidency hinge on whether the would-be candidate for that position is "ineligible to the office of the President."4 This choice of words matters because it interlocks the Twelfth...