Can a Former President Become a Vice-President?

(I originally published this article on 11th April 2024)

With speculation growing over who will be Trump’s running mate for 2024, a few students have asked me whether a former president can become a vice president. The answer is not entirely straightforward, but the key parts of the US Constitution are the 12^th and 22^nd Amendments. The closing words of the 12^thAmendment state:

 “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

Meanwhile, section 1 of the 22^nd Amendment states:

“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.”

What does this all mean?

The 12^th Amendment was passed in 1804 and the 22^nd Amendment was passed in 1952. This therefore means the answer to the overall question depends on which point in history you’re dealing with. Prior to 1804, there would have been (as far as I can tell at the moment) no actual constitutional restriction. However, the 1804 legislation put no limit on the number of terms someone could serve. Thus, someone could actually have served more than two terms as a president and could then also have served as a vice president afterwards. This remained the case until 1952. This is of course why Franklin D. Roosevelt ran successfully for four elections (1932, 1936, 1940 and 1944), though I know of no such case where a former president went on to become a vice president.

The next interesting case is Lyndon Baines Johnson, who served as vice president under John F. Kennedy and then assumed the presidency once Kennedy had been assassinated in 1963. Johnson went on to win the 1964 election and considered running in 1968 but ultimately stepped down. This would suggest someone can serve more than two terms as president in spite of the 22^nd Amendment. However, the wording of the 22^ndAmendment stipulates that someone who has served for two or more years as president under another president’s term cannot run for more than one election. If the 12^thAmendment is then factored in, this increases restrictions on who is eligible to run as president. Johnson would therefore have been legally eligible to run for a second election in 1968 because he had only been in office for less than two years by the time he ran in 1964. Johnson chose not to run not because of the 22^nd Amendment but because of the implications of the Vietnam War and the Tet Offensive in 1968. In theory, Johnson could also still technically have been eligible to serve as a vice president after 1968 but this obviously never happened.

Gerald Ford took over from Nixon in 1974 and ran unsuccessfully for the presidency in 1976. Had Ford won in 1976, the implications of the 12^th and 22^ndAmendments would most likely have made him ineligible to run again in 1980. Similarly, Ford would not have been able to have served as a vice president again. This would have been due to the fact Ford had served over two years as president under Nixon’s term.

The most recent case is that of Barack Obama, who won the 2008 and 2012 elections and had Joe Biden as his vice president. When Biden was running in 2020, there was speculation that he might have Obama as his vice president. This never materialised, presumably because Obama would not have been eligible due to the 22^nd Amendment, which places term limits, and the 12^th Amendment, which states someone who is constitutionally ineligible cannot serve as president.

In summary:

• A president cannot serve more than 2 whole elected terms.
• A president could serve one term and then later be a vice president.
• A vice president can serve as a president for two years plus two elected terms.
• A vice president can serve as president for one elected term if he/she has already served over two years as a president under another president’s term.
• A president who has served for two whole terms cannot go on to serve as a vice president (but this has not always been the case in US law).
• This has not yet been tested or challenged in US law.