Government

What About Joe Biden And Barack Obama For A Ticket?

At the very least, it would get the constitutional scholars more time on the news programs.

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(Photo by Hannes Magerstaedt/Getty Images)

The Democrats are up in arms.

Joe Biden’s consistently behind in the polls. He’s too old to be president. There’s nothing he can do to turn the tide.

Kamala Harris is even less popular than Biden. If Biden is incapacitated, no one trusts Harris to serve as president. A disaster’s in the making.

Maybe Michelle Obama can step in at the last minute and save the ticket!

I have a better idea: Maybe Barack Obama can step in at the last minute and save the ticket. Biden should consider asking Obama to run as Biden’s vice presidential candidate.

You’re thinking, of course, that Obama is disqualified from running as part of the ticket because he’s already served two terms as president. The Constitution forbids Obama from running for a third term. And you’re right: The Constitution does prohibit Obama from running for a third term as president. But the Constitution doesn’t forbid Obama from having run for president twice and then running for vice president, stepping into the president’s office only if necessary.

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Here’s the text of the 22nd Amendment:

No person shall be elected to the office of the President more than twice, and no person who has held the office of the President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

It would have been easy to write that “no person shall serve as President more than twice,” but the drafters of this amendment chose otherwise. They chose to specify that, “No person shall be elected to the office of the President more than twice.” If Obama wins election as vice president, he will not have been “elected to the office of the President more than twice.”

Folks more intimately familiar with the Constitution might argue that, whatever the language of the 22nd Amendment, the 12th Amendment disqualifies Obama from running for vice president. The 12th Amendment provides that, “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” But again, a close reading of this language may give the Democrats an escape: Obama is not “constitutionally ineligible for the office of the President.” He’s constitutionally ineligible to run for president, which is not what I propose he do. I propose that he run for vice president, which is not prohibited.

Legally, of course, my arguments are not guaranteed to win. If Obama were on the ballot, Republicans would challenge his eligibility, and they might win those lawsuits. But they might not: My arguments are not preposterous. And, in any event, let’s take a page out of Donald Trump’s playbook: So long as we can delay a final decision in the Republicans’ lawsuit until after Election Day, who cares what the result is? Biden would have been reelected; Trump would have been defeated; and Biden could select some new person to serve a vice president.

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Think about the politics of my proposal: Obama is popular in the Democratic Party. Although I haven’t seen any polling data, I assume that adding him to the ticket would supercharge Biden’s electoral chances. No one could argue that Obama isn’t qualified to replace Biden in a pinch; he’s already served as president for eight years. Even if Obama didn’t have to succeed Biden to the presidency, he’d be available to consult with Biden on key issues, giving comfort to those who are concerned about Biden’s faculties.

People might argue that substituting Obama for Harris as the Democrat’s vice presidential candidate would outrage sex- and race-conscious African American voters, who are pleased to see an African American woman as part of the ticket. But these voters would still be getting an African American man as a substitute; it’s hard to see voters abandoning the Democratic Party just because Biden replaced Harris with Obama. Besides, if this election is as critical as Democrats say it is — a contest between democracy and autocracy, for heaven’s sake — surely African American women would understand the need to put Obama on the ticket to save American democracy.

Obama himself, of course, might prefer not to run for vice president. Having already held the top job, he might feel it was a step down to serve as vice president. But Biden could explain to Obama the same thing he explains to female African American voters: This is a crisis. The future of American democracy is on the line. Democrats wouldn’t be asking Obama to jump over the side of a Higgins Boat into freezing water under enemy fire on June 6, 1944. They’d simply be asking him to serve four years as vice president to save America. Surely Obama would understand that it was his patriotic duty to accept the assignment.

I see one obvious objection to my idea: Maybe trying a gambit that arguably evades the intent of the Constitution is not the best way to go about defeating Trump this fall. I confess: That argument has some appeal.

But a Biden/Obama ticket has an awful lot to be said for it. It’s worth at least considering.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@preprod-atl.staging.breakingmedia.com.

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