How Clinton and Obama could run together and take turns being president.

The law, lawyers, and the court.
March 21 2008 6:45 PM

Clinton-Obama, Obama-Clinton

How they could run together and take turns being president.

(Continued from Page 1)

Ticket-flipping, then, provides a brilliant way for the Democrats to leverage the advantages of incumbency after 2009 so as to stretch their potential presidential tenure over the ensuing 16 years rather than the standard eight. The arrangement requires two strong candidates, each of whom is very plausibly presidential and each of whom has a large and intense political base, whose enthusiasm would be needed to assure success in the general election. This year the Democrats are blessed with two such powerhouses.

Which of the two candidates should top the ticket in 2008? Whoever ends up with more delegates at the convention. But if the two can privately—or even publicly—agree now to run as a true team in the general election, both will have ironclad incentives to play nice in the remaining primaries and caucuses and at the convention itself. If you're ready to dismiss out of hand the idea that Hillary Clinton and Barack Obama would ever agree to run as a team, here's my argument on why they might find doing so to be in their mutual interest. Each will want to head the ticket, but because the person on the bottom will also become president if the pair wins in November, competition for the top spot will be far less likely to spiral out of control in the turbulent weeks and months ahead. And so for the party, the benefits are manifold: A dream-team, turn-taking ticket would ensure that the Democrats' two most popular leaders and their supporters behave themselves and then truly unite. Moreover, the policy differences between Clinton and Obama are so tiny that it would be perfectly principled to tell voters that the ticket will flip at some specified post-inaugural date.

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Exactly how does the Constitution enable a sitting president and vice president to trade places? Whenever a president resigns, the vice president automatically becomes president, as when Richard Nixon stepped down and thus made Gerald Ford president in 1974. Under the 25th Amendment, the new president, in turn, picks a new vice president, subject to congressional approval. President Ford picked Nelson Rockefeller to be his vice president, and Congress said yes. Here's the twist: The 25th Amendment would allow the new president to pick the old president as the new vice president. Voila—the ticket, flipped! As long as the Congress approves, the 25th Amendment would thus enable the president and vice president to switch seats in a nimble transaction that could be completed in less than an hour.

As a matter of democratic principle, Congress should approve such a deal, given that the American voters would have blessed it long in advance, in the presidential election itself. But suppose a pigheaded Congress refused to play along, for example, because it was controlled by Republican naysayers. No matter. Instead of formally resigning, a president could accomplish the flip on his or her own, simply by transferring presidential power to the vice president under a different section of the 25th Amendment that allows the president unilaterally to transform the vice president into the "Acting President." In 2002 and again in 2007, George W. Bush used this section to hand over power to Dick Cheney before undergoing brief anesthesia. When Bush recovered, he resumed the reins of power.

To be clear: At every instant, America would have one and only one person acting as president and formally in charge. Hand-offs of power between teammates would occur much as they have when incumbents traditionally leave office, as when Reagan yielded in 1989, at the end of his second term, to his own handpicked running mate, the first George Bush. The 25th Amendment was specially designed to facilitate easy transfers of power back and forth between presidents and vice presidents. Its full potential to create a different kind of teamwork at the top—and to launch a new kind of presidential election strategy—has yet to be fully appreciated. Thanks to this amendment, the Demoocratic Party need not tear itself apart in trying to choose between two historic firsts. Instead, Democrats can offer the voters both—the first black president and the first woman president—via the first truly balanced presidential ticket.

Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

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