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May a former U.S. president be part of a successor's administration? More specifically, may Hillary Clinton make Barack Obama a member of her cabinet?

Are there even any historic precedents for such a move?

Joe
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Alexander
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  • Welcome to politics stackexchange. I removed a part of your question because it was completely speculative. We only answer factual questions here. But otherwise great first question on this site. – Philipp Sep 14 '16 at 11:47
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    US administrations don't have ministers; they have cabinet members. – jwodder Sep 14 '16 at 12:37
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    As the other answers have mentioned, there is nothing legally blocking this. However, its very bad from a PR perspective. In general once someone completes their presidency the expectation is that they ride off into the sunset and don't remain active in public politics anymore. – David says Reinstate Monica Sep 14 '16 at 17:29
  • While a former president would in no way be barred, it would be highly unlikely for a couple of reasons. For many (most?) politicians, this is "the top of the hill", anything else would feel like a step down. 2) I suspect many are delighted to retire from politics after that - it's a pretty demanding role. – MickeyfAgain_BeforeExitOfSO Sep 14 '16 at 18:32
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    Let us not forget that William Taft (#27) became a Supreme Court Justice after being President. – abelenky Sep 14 '16 at 20:34
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    When I saw the title for this question, I thought it was asking if a former President could be a preacher, which seemed like an odd thing to ask. Pretty sure the First Amendment would invalidate any laws against that. I've proposed an edit for the title to say 'cabinet member' instead of 'minister.' – reirab Sep 15 '16 at 03:37
  • @reirab Id agree with this edit, because I too thought OP meant a priest. Funny that someone would hear gossip about US politics and the election but not know we don't call our appointed officials ministers – Insane Sep 15 '16 at 06:23
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    @Insane Well, over here we usually get news in our own language. So the name of the post is usually translated. So the "US Secretary of State" is called "US-Außenminister", because that's what his job would be called in our country. Because of that it is very probable that the OP just fell victim to a "false friend". – I'm with Monica Sep 15 '16 at 06:32
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    @AlexanderKosubek Ah, that makes sense – Insane Sep 15 '16 at 06:33
  • I've even seen English-language news channels targeted at non-British audiences, that describe the British Home Secretary as the "interior minister". Which seems reasonable, since that's also used in Britain as the English term for similar posts in non-English-speaking governments, but still struck me oddly the first time I heard it. So even English-language sources might translate English job titles. – Steve Jessop Sep 15 '16 at 11:43
  • Some languages make sense, and then there's English. Everywhere else on the world, a ministry is headed by a minister. – Alexander Sep 15 '16 at 11:58
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    @Alexander It's a good thing our Secretaries run Departments then, not Ministries ;) – Geobits Sep 15 '16 at 12:39
  • @Geobits Makes sense: Most of the time, they act like small children in a department store. – Alexander Sep 15 '16 at 12:50
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    In the US government, Secretaries run Departments. Which is good, because if Secretaries ran Secretariats they'd be sitting atop race horses. Or perhaps Departmentaries could run Departments, meaning we'd need a new word which would just confuse everyone. In the US, ministers run churches, if they're Protestant (and there's a ton of those), unless they're priests or rabbis or imams running cathedrals or synagogues or mosques or heaven alone knows what else. Still, in America everyone can believe what they like. I believe I'll have a stiff drink... :-} – Bob Jarvis - Слава Україні Sep 15 '16 at 13:40
  • Yes, Hilary Clinton could appoint Barack Obama to run a department of the government. Problem? – Bob Jarvis - Слава Україні Sep 15 '16 at 13:44

5 Answers5

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The relevant legislation appears to be the United States constitution (which defines some of the processes and procedures around the office of the President) and the United States Code (which includes some description of the scope of the Executive branch). The only specific proscription on the activities of former presidents seems to be the 22nd Amendment which states that

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.

It's fairly clear that this doesn't apply to other executive offices.

In practice this is fairly unlikely to happen, if only because of the distracting sideshow of having one's predecessor in the job hanging around. The only remotely similar case I can think of is that of William Taft who eight years after serving as America's 27th President was appointed Chief Justice, and thus head of the judicial branch.

origimbo
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  • The Constitution is pretty clear that you cannot be elected into office at some point. What if Hillary chose Bill Clinton as her VP, then she dies? Bill is now president without being elected, no? Or would you say by voting for a Hillary/Bill ticket, that is the electing part? – BruceWayne Sep 14 '16 at 19:45
  • @a25bedc5-3d09-41b8-82fb-ea6c353d75ae A Vice President is elected, yes. – indigochild Sep 14 '16 at 19:53
  • But could you argue though that (per this clause only), that Bill could be president? "No person shall be elected to the office of the President more than twice..." Technically he wasn't elected to the office of President. (I'm being pedantic I know) or would a court "split" that sentence, where electing is separated from the office elected to? – BruceWayne Sep 14 '16 at 20:07
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    @a25bedc5-3d09-41b8-82fb-ea6c353d75ae The Twelfth Amendment: But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. – erdekhayser Sep 14 '16 at 20:09
  • @erdekhayser - Aha! That's it. So, before that Amendment, someone could have snuck in that way. Thanks for that, someone in Legislation caught that loophole too. – BruceWayne Sep 14 '16 at 20:29
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    No, because there were no combined tickets before that – Ben Voigt Sep 14 '16 at 21:29
  • As @BenVoigt points out, the 12th Amendment changed the legislation that stated that the presidential candidate that came in second place became the VP. After the 12th was ratified, the VP was voted for on a second ballot. The President and Vice President did become "running mates" (e.g. campaign as a combined ticket) until Lincoln and Johnson in 1860. – erdekhayser Sep 14 '16 at 22:08
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    Interestingly, nothing stops an ex-president from running for the House of Representatives, being elected, rising to become the Speaker of the House, then after both the President and VP passed away, owing to [looks at current candidates] a murder-suicide perhaps, returning to his old job for a single term – Michael Lorton Sep 14 '16 at 23:19
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    @Malvolio Alternatively, be elected as President zero or one times, and then rise from VP to President multiple times. – JBentley Sep 15 '16 at 08:50
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    @erdekhayser There is a school of thought that the 12th doesn't apply to the 22nd. The 22nd refers to being elected whereas the 12th refers to the office itself. So for example, the constitution requires that only natural born citzens who are are 35+ years old and have been a resident for at 14 years+, are eligible to the office, which means the same restrictions apply to the office of VP. However, you could have a person who is eligible to the office of President, but not eligible to be elected to that office, who then wouldn't be restricted by the 12th and could run for VP. – JBentley Sep 15 '16 at 10:04
  • @JBentley That's pretty interesting, and would probably make for a good follow-up question. I feel like the intention of the law is to prevent anyone from serving more than 2 terms in office, but the way the laws are written now, there may be an edge case that is unaccounted for. – erdekhayser Sep 15 '16 at 19:46
  • @JBentley Apparently, someone already got this idea: http://politics.stackexchange.com/questions/12334/does-someone-who-already-served-two-terms-as-president-get-skipped-in-the-pres – erdekhayser Sep 15 '16 at 19:50
  • There's a great summary of how the eligibility works, including re: line of succession here: http://law.stackexchange.com/questions/6396/what-if-any-position-is-the-highest-office-in-the-line-of-succession-that-some Fundamentally though - if you're not eligible to serve as president, you're not eligible to be in the line of succession for president. It's about eligibility, not election. – Withnail Sep 16 '16 at 09:43
  • @jbentley but at the time of the 12th amendment, the word "electable" for not exist, so someone who is not electable to an office is in no sense eligible to it. (Note the use of "ineligible to" rather than "ineligible for".) Taking that fact into account, a former president who has been elected twice is disqualified from succeeding to the office. – phoog Nov 11 '20 at 16:00
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No

Short answer: No, there is nothing formal preventing a former U.S. President from being a cabinet-level official (like a departmental Secretary).

The relevant law is the Appointments Clause of the Constitution (emphasis mine):

He (the President) shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Constitutional allows the President to appoint members of his government, but requires the "advice and consent" of the Senate. In practice, this translates into requiring Senate approval ("confirmation") of appointees.

indigochild
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A former (two-term) President is not barred from serving in a cabinet position simply because they are ineligible to become President. In fact, persons ineligible to hold the office of President are allowed to hold cabinet secretary positions. Although these offices are in the line of succession to the Presidency, ineligible persons are skipped if succession ever gets to their office. At the time of this writing, the US Secretary of the Interior, Sally Jewell, is an example of this practice. (See, for example, https://en.wikipedia.org/w/index.php?title=United_States_presidential_line_of_succession&oldid=739075188#Current_order). Although the Secretary of the Interior would normally be number 8 on the list, right behind the Attorney General, as long as Jewell holds the office and is ineligible, the order skips to the Secretary of Agriculture.

Finally, for completeness, I'll note that there seems to be some dispute over whether former Presidents are ineligible to serve as President, or merely ineligible to be elected President (i.e., making them eligible to rise to the office through succession) See, for example, the discussion in the National Review for the sort hair-splitting that this issue generates. For purposes of this question, it doesn't matter; either way a former President could be appointed to a cabinet position without running afoul of term limits to the Presidency.

Nobody
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    This doesn't answer the question. The question is whether a former President can be a cabinet-level official. Sally Jewell is not a former president (afaik). – indigochild Sep 14 '16 at 15:32
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    @indigochild: It doesn't answer the whole question, but it answers the main objection that could be raised to a former president being appointed to such a position. Obama's two terms as president wouldn't prevent him from becoming Secretary of State, even though that position is normally 4th in the line of succession. If it weren't for the "skip over them" rule, that could be seen as a reason he couldn't take that position. – Jerry Coffin Sep 14 '16 at 17:21
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    I believe that there would be no "skipping" of a former president with respect to succession. The 22nd Amendment (which sets the President's term limit) speaks only to the election of a person as President. Succession is not election. – Rob Sep 14 '16 at 17:57
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William Howard Taft was President of the US, then later appointed to the Supreme Court (not an Executive position, yet still somewhat relevant). This was before the 22nd Amendment, but I wouldn't think that matters.

Captain Chaos
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Although not prohibited, as a practical matter, this could create problems. If Hilary Clinton were to appoint Barack Obama to a post in her Cabinet, there might be a risk that he would "outshine" her, since he was President for 8 years, and she's the newbie.

Captain Chaos
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