Can Barack Obama Become Biden’s VP and Succeed Him as President?

That mouthful of a title is a question that’s been in the air for quite a while. It didn’t just arise when Biden exposed his mental frailty at the non-debate with Trump on June 27. But it has been resurrected (e.g. here and here).

So, what’s the answer? There isn’t a definitive one because no U.S. court has faced the question, let alone ruled on it. If the question ever arose — about Obama or any other former twice-elected president — it would end up at the U.S. Supreme Court. USSC’s decision likely would depend on the political makeup of the Court at the time, and the party affiliation of the former president.

But, political partisanship aside, here’s what I would argue:

1. Section 1 of Amendment XXII says this:

No person shall be elected to the office of the President more than twice, and no person who has held the office of 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.

2. Some would argue that this bars a former president like Obama from serving as vice president because Amendment XII says this:

[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

3. But when Amendment XII was ratified on June 15, 1804, the only conditions of eligibility for the presidency were these (from Article II, Section 1 of the Constitution):

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

4. Therefore, the language of Amendment XII quoted above doesn’t apply because Amendment XII didn’t contemplate the adoption of Amendment XXII 147 years later.

In short, barring a USSC ruling to the contrary, BHO could run for VP and succeed JRB Jr. Aargh!