Michael Dorf is a professor of constitutional law at Cornell University. In 2000, he
argued that an Al Gore-Bill Clinton ticket could withstand legal scrutiny. And when we spoke by phone on Thursday, he said that he stood by that argument.
The rough outline of his argument is this: The 22nd Amendment doesn't say you can't be president for more than two terms. It says you can't be
elected president twice. If a Biden-Obama ticket won (which we'll get to), and tragedy were to befall Joe Biden, Barack Obama could become president, according to the letter of the law (which we'll also get to), since he wasn't elected to the position. As such, Obama is not constitutionally ineligible to serve as president.
What's more, Dorf said, the case of
Powell v. McCormack in 1968 established precedent for a narrow reading of what constitutes "eligibility." In that case, the House sought to prevent Adam Clayton Powell from being sworn in as a representative, arguing that the Constitution gave them the ability to "
be the judge of ... qualifications" to sit in the House. The Supreme Court disagreed, deciding that the House couldn't add new qualifications (in Powell's case, that he faced legal problems) by which to deem someone eligible.
"I interpret the Powell case to mean that when the Constitution refers to 'qualifications,' or whether someone is 'qualified' for an office, that's a kind of term of art," Dorf said. "When we learn that the vice president has to have the qualifications for the office of the presidency, that is also a term of art. We look to the part of the Constitution that tells us what it takes to be qualified to be president, and not having served two prior terms is not among them."
