Can Barack Obama serve as vice president? 2 amendments complicate things

Who Will Kamala Harris choose as VP pick?

The "short list" of possible VP picks for Kamala Harris continues to shrink. Neal Rothschild at Axios joined LiveNOW from FOX's Josh Breslow to discuss what's ahead.

LOS ANGELES - Following a rally by Democratic leaders behind Kamala Harris after President Joe Biden dropped out of the 2024 presidential race, there has been quick speculation about who Harris might pick as her vice-presidential running mate.

While several names are being discussed, one intriguing question that has emerged is whether former President Barack Obama could serve as vice president.

What the 22nd Amendment says about presidential term limits

The 22nd Amendment to the Constitution, ratified in 1951, states, "No person shall be elected to the office of the President more than twice."

This amendment was introduced in response to Franklin D. Roosevelt’s unprecedented four-term presidency, aiming to prevent any future president from serving more than two terms.

The key phrase here is "elected to the office of the President," which explicitly restricts individuals from being elected president more than twice.

The 12th Amendment complicates things

The 12th Amendment, which was ratified in 1804, outlines the procedures for electing the president and vice president. It includes the clause, "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

Because The 12th Amendment states that anyone ineligible for the presidency cannot be vice president, creating ambiguity. Scholars debate whether the 22nd Amendment makes a twice-elected president "constitutionally ineligible" for the presidency, impacting their eligibility for the vice presidency.

This unresolved issue could lead to legal challenges if a two-term president is considered for vice president.

The interpretation of these constitutional provisions has led to differing opinions among legal scholars. Michael Dorf, a law professor at Cornell University, previously argued that the 22nd Amendment’s restriction on being elected president does not apply to the vice presidency.

Former President Barack Obama hugs Vice President Kamala Harris during an event to mark the 2010 passage of the Affordable Care Act in the East Room of the White House on April 5, 2022 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

What Legal scholars say

Michael Dorf, a law professor at Cornell University, has previously argued that the 22nd Amendment's restriction on being elected president does not preclude a former president from holding the office of vice president, as it only bars them from being elected president again.

"The 22nd Amendment doesn’t state a rule of eligibility for serving in the Presidency; it states a rule about who can be elected to that office; and someone who is elected to the Vice Presidency but then steps into the office of the Presidency to fill a vacancy is not elected to the Presidency," Dorf wrote.

On the other hand, some scholars believe the 12th Amendment makes a twice-elected president ineligible for the vice presidency, creating a significant constitutional ambiguity that could lead to legal battles.

According to a report from USA Today, Gary Nordlinger from The George Washington University, believes that a twice-elected former president is ineligible to be vice president. Nordlinger said "If anyone tried this, it would for sure end up at the Supreme Court. Because that’s who decides conflicts within the Constitution."

The Associated Press contributed to this story.