Sarah Palin: Is She Unqualified Under Implicit Constitutional Standards

John Dean seems to think so, in what has to be one of the most slanted and shoddy essays posted at Findlaw. Dean's clearly slanted political views and the facts in the real world, point up that Dean's reasoning is inherently flawed.

What are the constitutionl requirements to be Vice president? Not surprisingly they are the same as the president:

"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; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States. "

That is it. Constitutionally, Sarah Palin is qualified to be President and therefore Vice President.

Dean argues that the Framers did not consider the Vice Presidency that much, noting that initially the second place finisher in the Presidential Electoral College vote became the Vice President. This flaw was addressed in the 12th Amendemnt which mandated that the Electors vote separately for President and Vice President. However, the Framers did know that the Vice President was literally a heartbeat away from the presidency. Initially, the Framers wrote in Art. II, Section 1,

"In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. "

This section was altered by the 25th Amendment which will be discussed below. The Framers knew that succession to the Presidency was not only a possibility, but a veritably certainty at some point in our future.

Dean then argues that the 25th Amendment created "implicit" qualificaions for the Vice Presidency. In a section Dean titles The Twenty-fifth Amendment Suggests the Primary Qualifications for Vice Presidents: Be Equipped to Serve as President Starting, if Necessary, on Day OneDean, however, does not state how this requirement is any different under the 25th Amendment than it is under the original consitution that operated prior to the adoption of the 25th Amendment in 1967. Dean then talks about the two times the 25th Amendment has been invoked to find a "replacement" Vice President, both for Richard Nixon (after Spiro Agnew resigned ) and Gerald Ford when he ascended to the Presidency. Dean writes:

Both Nixon and Ford explained their decisions, and the criteria at the top of their lists. Nixon wrote in RN: Memoirs of Richard Nixon that from "the outset of the search for a new Vice President I had established four criteria for the man I would select: qualification to be President; ideological affinity; loyalty and confirmability." (Emphasis added.) Nixon's first choice was his Secretary of Treasury John Connally, who was dropped because he would have confirmation problems. (Connally was, in fact, later indicted but acquitted.) New York Governor Nelson Rockefeller and California Governor Ronald Reagan were taken off Nixon's list because the selection of either one over the other would have split the Republican Party. Finally, also on the list was Jerry Ford, the Minority Leader of the House, on whom Nixon settled.

Ford explained in A Time To Heal: The Autobiography of Gerald R. Ford that he had given considerable thought to filling the vice presidency when he became president, and his staff developed a ranking system. "There was one overriding criterion," he wrote to explain his baseline: "[H]e had to be a man fully qualified to step into my shoes should something happen to me."

Ford's top aides eliminated George H. W. Bush, who had served in the House of Representatives and headed the Republican National Committee, "as not yet ready to handle the rough challenges of the Oval Office." And when Ford settled on one of the wealthiest men in America, Nelson Rockefeller, it resulted in protracted confirmation hearings because of the extent of Rockefeller's holdings (which might have raised conflicts of interest). But in the end, Rockefeller was confirmed.

But the considerations that Nixon and Ford used were and are not Constitutional requirements, but personal requirements. Nor are these implicit requirements.

Now both Nixon and Ford had to deal with a confirmation process imposed by Congress in the 25th Amendment, namely that a "replacement" Vice President had to be voted on by all of Congress. So why teh vote? Because officially, the people, through the Electoral College vote on a Vice President and in this case Congress is acting in the stead of the Electoral College. What has never been tested is the concept of whether a nomination by the President for a replacement Vice president would be rejected since in the normal course of business, a Presidential candidate chooses his running mate as we have seen.

The 25th Amendment also sets the line of succession for the presidency, so let us look at those offices in order for the first say 5 slots (cause we would be in some severly deep excrement if we got even to that point:

Vice President--fine--the people voted on that officeholder through the Electoral College
Speaker of the House--theoretically this office could be held by someone Constitutionally ineligble for the presidency, i.e. someone under the age of 35 (not likely but possible) or more likely, not born in the United States. The qualificaiton for this office? Essentially they are a partisan leader elected by the majority party in the House of Representatives, they are not elected by even the pretense of a majority of Americans, but by the voters of one district--hardly a consensus choice. As is currently the condition, the Speaker could be of an the opposition party to the President's party.
President Pro Tem of the Senate--This is traditioanlly the longest serving member of the majority party in the Senate, that is all. This person is almost assuredly older than the president (Robery Byrd is significantly older than even John McCain.) This person could be from the opposite party of the President and is elected only by one state.
Secretary of State--While this person is appointed by the President, there are no other qualifications strictly necessary for this job other than the faith of the president and a confirmation by the Senate (which at least ensures some minimal competency). However, this person could be ineligble to be President (Madelaine Albright was because she was not a natural born citizen).
Secretary of the Treasury--see Secretary of State.

Dean argues that it would be unlikely that Sarah Palin would confirmed by the Congress under the 25th Amendment. But first, he does not know that, so it is easy for him to make that claim. One could argue that given that a Presidential Candidate can choose his running mate that he should be able to choose his own vice President in the event the office is vacant and no matter who controls the Congress, they selection would be approved "based on inter-branch comity." Dean then states that Palin is not in the same league as Gerald Ford or Nelson Rockefeller.

Maybe that is true, but neither is Barack Obama and herein lies the great fault of Dean's argument, namely that it is not consistent with the actual facts. Palin has just as much experience (and vastly more executive experience) than Barack Obama. Would Barack Obama be confirmed by Congress under teh 25th Amendment? If the sole arbiter is experience, then the answer would be NO. At least I have no more proof than Dean.