How President Obama Could Legally Serve Another Term as President

In the chaos of the recent weeks, it appears there may be no survivor in the brutal pre-primary Democratic contest. Bernie is sick. Joe’s had his kneecaps busted by a Ukrainian bombshell, and Liz made one threat too many to the rich American oligarchs who do not find her “2 cent tax” amusing. The situation seems desperate enough to give rise to a “Draft Hillary” movement (one she, herself, started).

But Clinton lacks the oratory skills of Trump and even hardcore Democrats wince at the thought of having to suffer through another of her campaigns.

Obama once boasted that he would beat Donald Trump in a head-to-head match. For those who follow politics like they follow sports leagues, the ultimate fantasy football equivalent for politics would be a 2020 general election matchup between Trump and Obama. Moreover, such a matchup would force America to choose between returning to the softer and gentler America in decline or stay on course towards a stronger and more prosperous America.

Alas, the 22nd amendment of the Constitution appears to make that scenario a fanciful parlor game. But what if there were a way, actually, to make it so? If President Obama is ineligible to run for president, could he nevertheless seek the office of Vice President?

Imagine this scenario, Vice President-elect, Barack Obama stands three feet away while he watches President-elect Place Holder take the oath of office. Immediately after the chief justice concludes the oath and now President Place Holder accepts a congratulatory kiss on the cheek from First Lady Holder, he then takes the microphone to give his first speech as the president. “My fellow Americans, my first act as president will be to fulfill my only campaign promise. As such, I hereby resign the presidency making my Vice President Barack Obama, both the 44th and now the 47th President of the United States.” The Chief Justice of the Supreme Court would then ask former President and Vice President-elect Obama to take the oath of office, “As long as we’re all here, anyway.”

The 22nd Amendment of the Constitution provides,

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.

So under this scenario, Barack Obama is a person who has been elected president twice. And, President Obama would not be eligible to run for another term as president. The amendment does not, however, bar a vice president from finishing a president’s term even if the vice president is ineligible to stand for another election. Obama could simply repeat the same trick in the 2024 election, i.e. running for vice president again, and then having the elected president resign immediately after being sworn in. As noted by Forbes, this idea was first seriously considered in 1959 at the end of Eisenhower’s second term.

Some may point to the 12th Amendment as a potential bar. It states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” Again, Obama would not be eligible to run for president. But he is not, strictly speaking, ineligible to hold the office.

So long as President Obama never runs for president again in a general election, he is otherwise not barred from eligibility under the Constitutional succession rules in the 25th Amendment.

But the fun isn’t over yet. If the vice president assumes the presidency, we now have a vacant constitutional post that must be filled. This most recently happened when Nixon resigned in 1974, elevating Gerald Ford to the presidency. Ford replaced Spiro Agnew when he resigned in 1973. Under the 25th Amendment, the Speaker of the House is third in line for the presidency. But if the president is still at his post when the vice president leaves, he can appoint a replacement vice president. Ford nominated Rockefeller to fill the vice president slot Ford left behind.

So what would Mr. Place Holder get out of the deal? The new President Obama could nominate him to replace him as the vice-president. That would have to be confirmed by the Senate, but Obama’s ascension to the presidency would not. Thus, with the approval of Congress, Vice President Obama could switch places with Mr. Holder. Even without the Senate’s approval, President Obama could still claim a third term that would be just a few minutes short of a full four-years. In theory, this trick could actually continue to work for the rest of President Obama’s life. And so long as everybody went along with it, President Obama could spend most of the rest of his life as president—taking short breaks to watch the swearing-in of the place holder (who would have to be changed every two elections).

While this might seem like an amusing exercise in mental gymnastics, the actual words of the Constitution appear to make this scenario legal and feasible. It certainly gives Democrats something to think about as they survey the wide but shallow field of nominee hopefuls for 2020.

About Adam Mill and Jack Servans

Adam Mill is a pen name. He works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. Adam graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Adam has contributed to The Federalist, American Greatness, and The Daily Caller. Adam's greatest pride is his 12-year-old son, who shares a love of deep political discussion and hiking in the alpine as often as possible. Adam believes that individual liberty is both the means of obtaining and purpose of collective greatness. Adam may be reached at He is not accepting new clients or consulting arrangements. Jack Servans is the pen name of Adam’s son.

Photo: Chip Somodevilla/Getty Images

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