Balkinization: Schwarzenegger as VP? Forget About It

Schwarzenegger as VP? Forget About It

Yesterday I spoke to a reporter, Michael Blood, about whether Arnold Schwarzenegger can run for Vice-President as part of a possible independent candidacy by New York City Mayor Michael Bloomberg. I tell him, no, he can't. The text of Article II section 1, clause 4 and the 12th amendment is clear. Schwarzenegger is not a natural born citizen and persons not eligible to be President can't be Vice-President. It's a terrible rule, I said, and we should amend the Constitution to change it. It's just wrong that persons not born in the U.S. can't run for President (and therefore for Vice-President).

But has it ever been tested in the courts, he asked. No, I said, it hasn't. But that's irrelevant. He can run every four years if he wants, but he's not eligible.

But that's not the story Blood wants to tell. So here's what he writes.

New York Mayor Michael Bloomberg daydreamed this week about running on a presidential ticket with Arnold Schwarzenegger, but the legal obstacles that prevent the Austrian-born governor from serving as president would also block him from the nation's No. 2 job, legal scholars say.
End of discussion? Not necessarily.
As a foreign-born citizen, Schwarzenegger is prohibited by the Constitution from holding the presidency. And the 12th Amendment, ratified in 1804, bans the native of Thal, Austria, or other naturalized Americans from serving as vice president.
But those prohibitions might be open to legal challenge, and it's not clear what would happen if Schwarzenegger or another foreign-born candidate decided to run, several legal scholars said.
"The law is very clear, but it's not 100 percent clear that the courts would enforce that law rather than leave it to the political process," said Columbia University Law School professor Michael Dorf, an expert in constitutional law.
Yale Law School professor Jack Balkin said Schwarzenegger "can run every four years if he wants, he's just not eligible" to hold either office.
But "I don't think it's ever been tested in the courts," added Balkin, who thinks the "terrible rule" should be dropped.

The story Blood wrote is about how it's not a closed question. But it is a closed question.

Could we make it not a closed question? Sure, if everyone agreed to look the other way. Courts could say it was a political question and refuse to pass on it. But political opponents would have incentives to raise the issue repeatedly, whenever Bloomberg tried to get himself and Schwarzenegger on the ballot. They would raise it whenever Schwarzenegger gave a speech as a candidate. It wouldn't go away.

But, you may ask, didn't Dick Cheney get the public to look the other way on the question whether both he and George W. Bush were both inhabitants of Texas? (Which would mean that Texas' electoral votes couldn't go to both men.) And given how close the past two elections have been, couldn't that have made a difference as to who became Vice-President in 2000 and 2004? Sure. But Cheney at least had a colorable argument that he was actually an inhabitant of Wyoming. Schwarzenegger doesn't have a colorable argument that he is a natural born citizen.

You might also point out that politicians-- and the judges they appoint-- disregard the language of the Constitution all the time. But they tend to do so when the text is ambiguous or vague, so that, once again, they have a colorable argument for what they do. The language of the Twelfth amendment is much clearer than "equal protection" or "due process."

So, dear readers, do you think that Mr. Blood-- who is a political reporter for the AP and therefore presumably has good political instincts-- is right? Could enough people be persuaded not to care about a relatively clear textual rule in the Constitution? Your comments are welcome.

Posted 6:50 AM by JB [link]

Comments:

Considering the way that the MSM has blown over systemic voting problems and irregularities (Ohio, Blackwell's tinkering, Florida, caging, etc...), yes, enough Americans would and could turn the other way. And that includes jurists.

# posted by

Der Schatten : 10:27 AM

Sadly, I think any sentence that begins, "In America, we would never..." has now been rendered immediately questionable by the last six years. We would never torture? We would never imprison people indefinitely without charges? We would never invade a country without good cause? And so on, and so on. Never say never again.

# posted by

GlennNYC : 10:32 AM

If the Bloomeneggar ticket were Republican, there's no doubt in my mind we (the People) would be bullied into accepting it and that the courts would refuse to bar it. Just the opposite would be true if the ticket were Democratic; the screams of anguish about the sacrilege to the Constitution would be heard from here to 1789. If they run as independents, well, that depends on how the Republicans see them as affecting the race.

# posted by

Mark Field : 11:12 AM

Unlikely (at best). It would require federal judges at a number of ascending levels -- presuming the lower court judges deemed it a political question -- to ignore constitutional text that is pretty clear, something that the professional norms of judges/legal profession simply wouldn't accept (absent very unusual circumstances).

While we all know the example that a good advocate could challenge even the 35 year old age minimum for the presidency, such an argument would only be accepted in a national emergency where, as Prof. Balkin has noted, in the unusual circumstance that the electorate felt the *only* a <35 year old could lead the country. That said, I don't think the electorate/fed judiciary is so fed up with the Dems/GOP that it would be willing to ignore the 12th Am/Art II to elect Bloomberg/Schwarzenegger.

# posted by

Calvin TerBeek : 11:16 AM

There was some concern back in 2000 over whether John McCain could become President since he (like myself) was born in the Panama Canal Zone. Of course, there's plenty of paperwork and rules to make it perfectly possible, but it was evident to me (partly, no doubt, because I'm in the same boat, albeit with lower aspirations) that the media was quick to pick up on the potential shortcoming and discuss it with experts. It was never a huge issue, because the route to permission exists.

I think the media would pick up on the issue right away (they already have, haven't they?), and I agree with Jack that any opposing candidate would be a fool to not bring it up loudly and often. I suspect charts showing the distance between Iowa and Austria could make an appearance.

Given the media's love of "controversy" and celebrities, I think Arnold would be too big of a target to ignore.

# posted by

PMS_Chicago : 12:22 PM

Professor Balkin: Could enough people be persuaded not to care about a relatively clear textual rule in the Constitution?

Hmm, y'mean like back on September 18, 2001, when we legislatively enshrined the so-called "war" on terror by granting war powers to the administration despite the conspicuous absence of anything that could rise to an existential threat to the nation and the similar absence of anything like a nation or state with which we could reasonably be deemed at war?

Asked and answered. If Rush and Ann and Bill and Sean push it hard enough and it sells enough soap then the Scalia bench will give it to him just like they gave the White House away in 2000---when there was arguably less of a GOP chokehold on the bench.

$.02; back to lurking for me.

# posted by

Robert Link : 12:50 PM

This comment has been removed by the author.

# posted by

jc : 2:41 PM

I'm glad I read this post, because it helps explain what happened to me on local news last night. I told a local news reporter that because of the 12th Amendment, A.S. could not be VP, short of a constitutional amendment. After some unfortunate editing that makes it sound like I think the 12th Amendment is not actually part of the Constitution (yikes), the reporter properly represented that I "said the law is clear" that A.S. could not be VP. But then she immediately said: "But, it's not 100 percent clear that courts would challenge or enforce it rather that leave it to the political process." This is not attributed to me, but it sort of looks like I said it when you watch the clip. I did not say it, and -- to answer your question to readers -- I simply don't think it's true. Interestingly, I now see that the reporter's words track the Dorf quote in Blood's AP story. All is clear.

# posted by

jc : 2:43 PM

I assume anything is possible, but where the text of the Constitution really is clear and the only argument would be that courts can't enforce it, there doesn't seem to be much of a reed for the media to report the story this way.

That said, lots of Bush Administration legal positions are asserted based on the same ground, i.e., that they are unreviewable even if illegal, and the news media credulously reports about them as if there is an actual debate. (For instance, it is entirely clear that torture by a government employee acting in the scope of his or her employment violates US law whether or not it is performed in the US, whether or not the victim is a US citizen, and whether or not the torturer is employed by the Defense Department or the CIA. But in some or all of those situations, the Bush Administration can get the courts not to exercise jurisdiction to decide the claim. That doesn't make it legal.)

This gets to a broader point that our discourse about the law is dominated by some very hackish scholars who are willing to pretend that things are colorable or arguable when they are not, to suit their political leanings. And the media overrelies on these types and underrelies on academics who are willing to admit when the law doesn't support their favored positions.

# posted by

Dilan : 4:41 PM

"And the media overrelies on these types and underrelies on academics who are willing to admit when the law doesn't support their favored positions."

But the former prevail, all too often, so are the media being irrational in this?

I mean, we had a recent case where, unambiguously, the text of a bill sent by Congressional leadership to the President for signing was not passed by both Houses, and the courts waved their magic wand, and suddenly laws don't really have to be passed by both Houses, just "enrolled" by their leadership.

The quorum requirement for Congress isn't exacly vague, but you'll get nowhere quick arguing in court that a quorum wasn't present when a law was voted on.

And that's not even to get into such morasses as modern commerce clause jurisprudence, which we pretend is arguably correct only to avoid admitting that most of the modern regulatory state is flat out unconstitutional.

I would imagine that if Congress passed a law retroactively declaring Arnold to be a native born American, there's about a 50-50 chance that the Supreme court would decline to call them liars.

# posted by

Brett : 6:54 AM

I was used in the same way. I made the point I did in the context of explaining Powell v. McCormack, which said that the question whether someone has the requisite qualifications for Congress is committed to each house, but the question of what those qualifications are is justiciable. Thus, IF, in the context of adjudicating a challenge to his election, Congress or the Senate (per the 12th Am) were to rule that AS actually were a natural born citizen (contrary to obvious fact), that would not necessarily be subject to challenge in the courts, but if (as in Powell), Congress said it was permitting AS to be President notwithstanding his having been born in Austria, that would be subject to judicial challenge.

# posted by

Michael C. Dorf : 11:38 PM

I was considering this question, and it occurred me that a legal case could be made that the 14th Amendment supersedes the 12th and by guaranteeing equal rights, protects the right of Naturalized citizens to run for President or Vice President. It would be a new interpretation, but would not require another amendment, just an amenable Supreme Court.

# posted by

P.S. : 10:35 PM