Q. If Kamala Harris were to step down, could President Biden pick former President Barack Obama to be Vice President?
A. President Joe Biden’s age has raised a few questions about presidential succession should he be elected to a second term. While my expectation is that President Biden will continue to run with Vice President Kamala Harris, even if he were to consider a change, some of the theories floating around the Internet are not realistic.
The idea that Barack Obama could return to the presidency is fantasy. Barack Obama has served two terms as president. Under the U.S. Constitution, he is ineligible to run for that office again. The 22nd Amendment reads in part, “No person shall be elected to the office of the president more than twice.” The theory being passed around is that by replacing Harris with Obama, Biden could circumvent this restriction and allow Obama to run for vice president and then assume the presidency again by Biden resigning during his second term.
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This makes for a good story for a television or a novel but little else. First, I doubt that Biden or Obama would try this. Second, it would likely not work. The 12th Amendment reads that, “[N]o person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.” Since the former president would not be eligible to run for president, he is almost certainly barred from running for vice president. One could make an argument that Obama meets the qualifications stated in Article II, Clause 5, since he is over 35, a natural-born citizen, and a resident of the country for more than 14 years. He would be fine under Article II, but that seems a disingenuous argument at best and the courts would likely not support it.
The slightly more plausible theory is that President Biden would only serve briefly in his second term and then resign in favor of Vice President Harris, who then could serve out the term and run twice more. This is possible, but Biden would have to serve for at least two years after being elected again if Harris wanted to run for two more terms after finishing Biden’s second stint. The 22nd Amendment addresses this circumstance as well, and states in part, “[n]o 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.”
Many of the theories of presidential succession circulating through social media are fanciful at best. Some, as we can see above, are not workable. However, they are understandably popular issues of discussion as our leading candidates for president are not young. It’s probably worth thinking about for Donald Trump as well, since the former president is leading in early polls for the Republican nomination and is approaching 80 years old. It certainly is appropriate to consider the presidential succession under these circumstances but we should probably stick to the basic terms of the Constitution when doing so.
Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter @kevinwagnerphd.
This article originally appeared on Palm Beach Post: Can Barack Obama serve as vice president in 2024, replacing Harris