Speculation about President Obama’s second-term Cabinet has begun. After Bill Clinton’s well-received performance at the Democratic National Convention and tireless campaigning, some sources are wondering whether he might be interested in serving as secretary of state. Is Bill Clinton constitutionally eligible for that office?
Probably. The 22nd Amendment renders Bill Clinton ineligible for election to a third term as president, but there’s nothing in U.S. law that would prevent him from serving as secretary of state. Although a minority of scholars believes that the spirit of the 22nd Amendment prohibits Clinton from serving anywhere in the presidential line of succession, it’s unlikely the Supreme Court would stand in his way.
If the president, vice president, speaker of the House, and president pro tempore of the Senate all became incapacitated, would Clinton then ascend to the presidency? That’s a more difficult question. The language of the 22nd Amendment prohibits “election” to a third term, and some legal scholars believe this means succession to a third term is perfectly constitutional. (This interpretation led some to suggest a Gore-Clinton ticket in the 2000 presidential election.) On the other hand, the Presidential Succession Act states that Cabinet members who are ineligible to serve as president—if they are too young, for example—should be skipped in the line of succession. It’s possible the Supreme Court would rule that Secretary Bill Clinton would be similarly ineligible, and the secretary of the treasury would become president.
There’s little legal precedent on this question because few presidents have returned to work in the federal government. William Howard Taft was appointed to the Supreme Court after leaving the White House, Andrew Johnson served in the Senate, and John Quincy Adams joined the House of Representatives. None of those offices is in the line of succession.
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Explainer thanks Michael Dorf of Cornell Law School.