Is Hillary’s candidacy legal?

Independent Indian, via Indian & Pakistani Friends of Ron Paul ^ | July 10, 2007 | Subroto Roy

[OESY]

Mrs Hillary Clinton, Senator from New York State, is one of the leading contenders for the Democratic Party’s nomination for President of the USA in 2008. But a question arises, as she is the wife of a former two-term President, whether her candidacy is legally allowed under the US Constitution and American law.

America’s first President, George Washington, held office for two consecutive four-year terms and declined to run for a third term in 1796. From that time onwards to Franklin D. Roosevelt, it became a constitutional custom in the USA that no President would serve for more than two four-year terms. Two Presidents (Ulysses S. Grant and Theodore Roosevelt) were criticised for wishing for a third non-consecutive term and were unable to break the unwritten rule that prevailed since Washington’s time.

Franklin Roosevelt won first in 1932 and then again in 1936; by 1940, the USA had almost joined the world war then in progress, and the constitutional custom was broken. Roosevelt won a third term in 1940 and a fourth term in November 1944, but died in office a few months later to be succeeded by his Vice-President Harry S. Truman.

Franklin Roosevelt will be the last American President to serve more than eight years in office as the US Constitution was amended to prevent anyone serving more than two terms ever again, thus enshrining into law the customary rule since Washington’s time. The 22nd Amendment to the US Constitution was passed by the US legislature on 21 March 1947 and ratified on 27 February 1951. It said: “No person shall be elected to the office of the President more than twice.…”

Mrs Clinton’s problem is that she has been and remains married to a person who has been elected to the office of President twice, namely William Jefferson (“Bill”) Clinton. Ironically, Bill Clinton’s Presidency was marked by extra-marital sexual indiscretions, and Mrs Clinton may have had reason enough to end her marriage with him through divorce. But she chose not to. Had she done so, she would have been distinct from him in the eyes of the law and not faced any potential constitutional barrier to running for the Presidency now.

She remained and remains married to Bill Clinton. In the common law tradition, husband and wife are “one” in the eyes of the law. For example, a spouse may not be compelled to testify against his/her spouse. That is something enshrined in the law of India also: Section 122 of the Evidence Act says a person lawfully married cannot be compelled to testify against his/her spouse. In the common law tradition, a spouse also cannot be accused of larceny against a spouse during duration of a marriage.

The idea at the root of this is that marriage is a legally meaningful relationship and that spouses are one and the same person in the eyes of the law. Applying this to Hillary Clinton now, this means she and Bill Clinton are one and the same legal person and remain so as long as they are married. Hence, her candidacy for the US Presidency may well be found by a US federal judge to be unlawful in breaching the 22nd Amendment. Of course, the judge could advise her to get divorced quickly (e.g. in Nevada) and then run again as a single person who was legally distinct from a two-term President.

[toddlintown]

I hate The Beast, but man, this is a real stretch.

[Old Professer]

As he is writing from India, he probably doesn’t.

[weegee]

Wrong reasoning, right conclusion.

[TexasBud]

That doesn’t wash. That’s like saying that Jeb Bush couldn’t be elected President because his brother, former President Bush, would have extraordinary influence over the Presidency after the 8 year cap expired. Or that George W. Bush couldn’t have been elected, if his pa had served two terms, because of assumed extraordinary influence over the Presidency.

There is no law against being related to the President.

[MARTIAL MONK]

I had a friend who claimed that people were so dumb that they would buy sh!t on a stick. Well, this is sh!t on a stick.

[TKDietz]

“Granted, it’s a longshot but conservatives have nothing to lose by trying it.”

Except credibility. Come on, this is argument that husband and wife are one therefore Hillary Clinton has already had two terms is just plain idiotic. Federal precedent or not, no court would take this argument seriously and anyone who made it would come off looking like and idiot. If there was any publicity it would be bad publicity, and as for Hillary Clinton having to divert resources to fight the suit, that’s a joke. There wouldn’t be a fight. She’d score points using this debacle to paint conservatives out as idiots with backwards ideas.

[OESY]

There was no law or Constitutional amendment against JFK appointing his brother as Attorney General, the Chief Law Enforcement Officer in the country, but that didn't stop, nor should it stop, people from arguing against the precedent. Power tends to corrupt.

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[OESY]

Damn, even our whack-jobs are being outsourced to India now.

Since you raised the question:

Subroto Roy, who is also know as Subroto Roy Sahara is the head of the USD 10.87 billion (£5.5bn) Sahara India Pariwar. He lives with his family in a mansion in the Indian city of Lucknow, in the state of Uttar Pradesh. He is an influential businessman in India, who has contacts with politicians like Mulayam Singh Yadav (Former chief minister of U.P.) and Amar Singh. Sahara India Pariwar’s success story began in 1978. Starting on a modest scale with a capital of only Rs. 2000 (USD 43), the company has traversed a long way to become a frontrunner in Indian entrepreneurship.

He is popularly known as “Saharasri”. As per a leading Indian magazine, he is one of the top ten highly influential individuals in India.

He was born in Gorakhpur (U.P.) and started his business from there which has now grown into a big empire.

Source: http://en.wikipedia.org/wiki/Subroto_Roy


COMMENT: Have you ever noticed our media seem reluctant to write articles unfavorable to the Clintons or to investigate wrongdoing by liberals? Take, for instance, the sloppy FBI work regarding the Oklahoma City bombing or, more recently, illicit campaign money raised by the Clintons. Fasten your seat belts. It's going to be a bumpy ride.

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[OESY]

You are aptly named, but I do give you credit for figuring out that I was using you to bump interest and to suggest that 16 years of a co-presidency is a bad idea.

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[Secret Agent Man]

The amendment is right, your interpretation I believe is incorrect.

You are distorting what “acting as President” means to be Hillary with her husband’s blessing to try to push her social programs through. “Acting as President” assumes that that person IS the President and has the authority to exercise Presidential powers. If you read the It is clear Bill was THE PRESIDENT. He never gave up his powers, he never sent a letter to the Senate saying he could not discharge his duties, he never was disabled and had anyone in the line of succession take over during such a time.

“Acting as President” refers to someone who is the current President, but may fall under the 20th Amendment, Section 2 issues. And that is what ‘acting as President’ refers to inthe 22nd Amendment you cite.

You are wrong that the VP holds the office as President via ascension (like this has any affect on their ability to run for President). If that were the case then Bush 1 and Gore would not have been able to run for President, as they were both VP’s for eight years - by your statement they held the office as President and therefore not constitutionally been able to run for President after their two terms as Vice Presidents.

I don’t know why you think this is a workable strategy. She was not acting as President. Ultimately she was under Bill, was working in his administration, but she was not the president.

I will grant you she WANTED (still does) to be president, and maybe even thought she was co-president (ie you vote for Bill, you get both of us) but you are messing up the definition of ‘acting’. “The Acting President of the United States” is different from “Hillary acting like she’s President.” One is a title, the other is a massive ego.

[TankerKC]

Damn, even our whack-jobs are being outsourced to India now.

OK...that's funny!

[TankerKC]

Though I’m thinking it will get shot down in the courts .. especially if it’s a Clinton Judge.

...or someone with a brain.

[TankerKC]

The amendment says only that you had to be acting a president for 2 years. It specifically AVOIDS saying that you had to BE the President.

I guess Martin Sheen is out too, then.

[TankerKC]

Lurleen Wallace

[Captain Beyond]

What would be interesting is if Hillary has Bill as VP on ticket.

[CyberAnt]

And .. he’s already saying he will attend cabinet meetings, if asked. He has no business attending any of those meetings.

We just cannot allow Clinton,Inc. to be elected president!!!

I agree with Rush .. Clinton,Inc is the last desperate GASP of the HIPPIE generation .. and we need to end their attempts to regain any authority over America again.

[The Pack Knight]

If this was the 18th century, you'd have a point. However, the legal fiction under common law that husband and wife are one legal "person" was abolished with the Married Women's Property Act during the 19th century in England, and similar acts and reforms in every common law jurisdiction in the US.

Husband and wife have not been considered one legal person in any state in the Union for well over a century. Husbands and wives can hold separate property, can make separate contracts, and can owe separate debts. They can even both vote! Imagine that...

I don't want to see another Clinton in the White House any more than you do, but your argument has no basis in the law. Lets try to stick to plausible arguments, please.

[The Pack Knight]

She acted as a cabinet level officer, not as President. People had a pretty good idea of what an Acting President was when the 22nd Amendment was ratified. Hillary's role did not fit that definition.

To act as President is to wield the legal authority of the office. Simply having a great deal of influence isn't enough.

Her candidacy is not a violation of either the letter or the intent of the 22nd Amendment.

[The Pack Knight]

That actually would be unconstitutional. Bill is ineligible to the office of President under the 22nd Amendment, and so he is also ineligible to the office of Vice President, as per the 12th Amendment.

The only argument I've seen that that wouldn't be the case is that the 12th Amendment only addresses those "ineligible to the office", while the 22nd Amendment only states that "no person shall be elected to the office" who has met the term limits. Bill Clinton may not be eligible to be elected president, but that doesn't make him "ineligible to the office", so the argument goes. That's a bit of a stretch to say the least, though.

[4Liberty]

OESY,

You found the wrong “Subroto Roy” at Wiki. You need to be careful when using Google: There are at least 18 “famous” Subroto Roys out there, apparently...

The one who authored this article is actually an economist who studied free market economics, and who has visited George Mason University’s Public Choice Center (where conservative economist & Nobel Prize winner, James Buchanan, works).

Roy is a Public Choice Economist. He is simply making speculative institutional observations. Public Choice Economists like to ponder legal/economic issues, and the effects of different institutional incentives on personal conduct and economic progress. They are very nerdy.

I am sure the Subroto Roy of this piece has no “ax” to grind despite what all of the messages above have to say.