Oh, Those Vice Presidents
After the dust-up over whether John McCain can be president, even though he was born in the Canal Zone (see last post), a friend asked what the citizenship requirements are for the vice president?
Aaron Burr, the killer Vice President
There are none. The delegates to the Constitutional Convention did not come up with the Vice President until the tail end of their summer in Philadelphia in 1787. So they did not think through the Vice President very well — that’s why the Twelfth Amendment had to be adopted to ensure that electors would cast one vote for president and one for number two.
But back to citizenship. The Constitution states only: “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President.” Hmmm.
Does that mean only that you cannot be elected vice president unless you are a natural born citizen? This conclusion would construe the constitutional term “eligible” narrowly; the term would only apply to those individuals seeking election as president, not to those who might ascend to the presidency by operation of law. If that strict construction of the language is correct, then a foreign-born person could be elected vice president and accede to the presidency upon death or incapacity of the president.
This approach is somewhat consistent with the Constitution’s vexing ambiguity about what happens when a president dies or becomes incapacitated. When this first arose with the death of our ninth president, William Henry Harrison in 1841, there was confusion over what to call his successor, John Tyler. Was he the “acting President”? Or was he still the Vice President but performing the functions of the President? Or was he President? We have gotten used to the notion that the successor is the President, but nineteenth-century Americans had trouble with it. The Constitution is profoundly unhelpful on the subject. When a president dies or becomes incapacitated, his “powers and duties . . . shall devolve on the Vice President.” Congress can determine by legislation who shall “act as President” if both the president and vice president are dead or incapacitated. But is that successor actually the President? The Constitution sayeth not.
Back to the citizenship of the vice president.
Alternatively, the key language (“eligible to the office of president”) might mean that you cannot be in the line of presidential succession at all unless you are a natural-born citizen? That has some intuitive appeal. It would prevent someone being “eligible” to be president who was merely a naturalized citizen. Then only “natural born citizens” could be vice president. But what of the next level of sucessors — the Speaker of the House? The President pro tem of the Senate? Under the Constitution, members of the Senate and the House need not be natural born citizens, but need only have lived in this country for a minimum period (seven years for the House, nine for the Senate.) And what of members of the Cabinet? All of those officials may be naturalized citizens, and thus not “natural born citizens.” Under congressional legislation, all are “eligible” to be president.
Or perhaps, in the stupidest interpretation of the constitutional language (“eligible to the office of president”), it means that a naturalized citizen can be elected vice president but cannot thereafter become president. If that’s the correct interpretation, then no party should nominate for vice president a naturalized citizen.
Didn’t anyone think this through?
Next time, more on vice presidents.