On Restoring Obama to the Presidency, Constitutionally

Like the Blues Brothers, it’s time to put the band back together. There may be many people who could be President, but there is only one with the actual experience, who is young enough, who can get us out of the hole dug in the past year.

That person is, of course, Barack Obama.

But the 22nd Amendment you say? What it actually says:

Section 1

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. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Yes, he cannot be elected President by the electoral college. But that does not mean he cannot be chosen as Acting President by Congress. The Constitution is a document ripe with loopholes. Here is the plan

  1. Elect Obama to be Speaker of the House of Representatives
  2. Impeach (and Convict) the President
  3. Do not let the Vice President (now President) appoint a replacement
  4. Impeach (and Convict) the Vice President (or new President)
  5. Deploy the Presidential Succession Act, and the Speaker of the House becomes Acting President for the duration of the term.
  6. Rinse,
  7. Repeat.

This obviously requires several things to happen, each of which is admittedly unlikely, but this is a strange world.

First, elect Obama to be Speaker. This assumes the Democrats retake the House (and the subsequent steps require the Senate as well), so say this begins in 2019, after the 2018 midterms. Obama need not be a member of Congress to be elected Speaker, that is merely a custom.

Second (and Fourth), Impeach and Convict the President. Impeachment in the House requires a majority vote. Conviction in the Senate requires a two-thirds vote (Article I Section 3). This is the hard part. The VP could be impeached before the President as well, so long as step three takes place. The grounds for Impeachment and Conviction are determined solely by Congress and are “Treason, Bribery, or other high Crimes and Misdemeanors” the last of which is pretty broad and essentially a political question.

Third, the Twenty-Fifth Amendment allows the President to nominate a replacement for Vice President, which is how Gerald Ford and Nelson Rockefeller assumed the office. This requires a majority vote in both Houses. Clearly the Houses can pass or vote down the nominations. Congress declines to accept

Fifth, the Presidential Succession Act names the Speaker of the House as third in line, so if the Presidency and Vice Presidency fall vacant, the Speaker becomes Acting President.

In effect, if the Senate is controlled by a two-third majority, and the same party has a majority in the House, the US could become a Parliamentary government.

The reason this is so difficult is the electoral landscape. Even assuming the Democrats take back the House in 2018, the 2018 Senate election will see one-third of seats up (as per the Constitution), of which only 9 are currently Republican (23 Democrat and 2 independent). So if the Democrats hold all their seats and take all 9 Republicans, the Democrats will still have  only 55 seats (plus 2 independent). That is short 10 seats for a two-thirds majority. So the Democrats will need to persuade ten or more Republicans to either vote for Conviction or switch parties. Not unheard of, but improbable. One imagines getting them to vote for the Conviction of the President will be easier than for the Conviction of the Vice President.