Democrat strategists might be ready to exploit a loophole to get former President Barack Obama back in the White House, which includes making him President Joe Biden's running mate and next in line should Biden step down after the election.
Obama was term-limited as president, but legal scholars are now suggesting Biden could give his slipping campaign a shot in the arm by replacing Vice President Kamala Harris with Obama as his running mate, Paul Bedard wrote Thursday for the Washington Examiner.
"A Biden-Obama ticket would have a much better chance of beating Trump," George Washington University Law School's John Banzhaf told Bedard.
"Barack Obama is probably one of the few persons whom a majority of Americans would want and trust as president, so Plan C might be the least objectionable of a number of very unpopular and dubious options now open to Biden and the Democratic Party."
The 12th and 22nd Amendments to the U.S. Constitution preclude Obama from being elected to a third term, but Biden, 81, could carry the former president as his running mate and then ultimately step down after winning the election, constitutional scholars postulate.
"The 22nd Amendment, which is most frequently cited as a bar to Barack Obama ever serving as president again, doesn't — according to its carefully crafted and very narrow exclusionary language," Banzhaf told Bedard.
The key sentence uses the phrase "elected to the office of the president," but it would be Biden getting elected and leaving Obama as the torch bearer if the incumbent president were to step down after being reelected.
"No person shall be elected to the office of the president more than twice, and no person who has held the office of the 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," the 22nd Amendment reads.
That is a loophole Democrats desperate to retain the power of the presidency and jumping back on the Obama voter base against Trump could exploit, according to Banzhaf.
"While this amendment may bar Obama from 'being elected' to the office of president again, it obviously and by its clear language doesn't prohibit him from being elected as vice president, and subsequently becoming president by succession without ever being elected to the office again," Banzhaf told Bedard.
The same argument can be used to skirt the restriction laid out by the 12th Amendment, according to Banzhaf.
"According to the overly precise language deliberately carefully chosen by the drafters, Obama cannot 'be elected to the office of the president,' but there's nothing to say that he cannot be elected to the office of the vice president, and then succeed to the presidency if Biden becomes unable to perform his presidential duties or simply resigns," he continued in an email to Bedard.
"In other words, Obama is not now 'ineligible to the office of president' and therefore ineligible to run for vice president; rather he is only ineligible to be 'elected' to the office of the president, not ineligible to attain the office by succession."
Banzhaf raised the loophole shortly after Biden's debate performance last week.
"Rather than simply offering the public the opportunity to have a second-term Biden president supported and backstopped by a very popular and clearly very capable former president Obama, and having someone with experience and a proven record as commander in chief should Biden not be able to continue to serve at any time during a second four-year term, Biden might even consider announcing before the election that, if elected president, he would resign shortly after his inauguration so that Obama can then become president," Banzhaf wrote.
"In addition to claiming that stepping down is the statesman-like thing to do, Biden could argue that resigning would be necessary to permit him to break his promise not to pardon his son, Hunter Biden.
"Indeed, letting Obama take over would also limit the adverse political fallout of going back on his previous commitment."
There is no indication Obama would be amenable to the "Plan C" proposal, according to Bedard, but there is reporting indicating Obama is concerned about Trump defeating Biden and returning to the White House.