The 22nd Amendment doesn’t say what you think it says
The 22nd Amendment to the United States Constitution was passed in an era when Americans were concerned about the rising power of dictators overseas. After Adolf Hilter and Mussolini both gained power in their respective countries, there was a concern that the same could happen in the United States. This concern was only exacerbated by the rise of Franklin D. Roosevelt who was elected to an unprecedented four terms in a row. This continual re-election of FDR was more concerning when he died not long into his fourth term. FDR’s actions were in contravention of a norm that had held until then in American politics that no one would run for a third term. Presidents had considered running for the unprecedented third term several times, and in the few instances where someone did seek a third term, such as in the case of Theodore Roosevelt, they failed in their re-election bids.
Accordingly, after FDR died, at the urging of then-president Harry S Truman, Congress decided it was time to act. Congress created what is now the 22nd Amendment, which was reviewed by the States and passed with overwhelming support from the American people.
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.
But an interesting ambiguity resulted. The 22nd Amendment only requires that someone not be elected to the Presidency more than twice. Someone who was elected to two terms on his own is still eligible to be Vice President and to rise to the Presidency upon the death, resignation or removal of the President.
If we review the 12th Amendment, we find that there is a requirement that the Vice President must be eligible to become President. This has led many to conclude that someone who has already been “termed out” as President could not serve as Vice President; however, this does not appear to be correct. The 12th Amendment only requires that an individual who is ineligible to become President cannot be Vice President. It does not say that someone who is ineligible to be elected President could not be Vice President. Accordingly, the 22nd Amendment leaves open a loophole that an individual could be elected to the Vice Presidency (or the Speakership of the House), then rise to the Presidency.
In a time of concern, perhaps the Nation could call on a former two-term President by electing him as Vice President even with the knowledge that the plan all along was for the President to resign immediately upon taking Office. This might violate the spirit of the Amendment, but it does not violate its letter.
Government teachers and pundits like to boil down the 22nd Amendment to the proposition that the President cannot serve more than two terms. While this is useful in shorthand discourse, it is not precisely correct. And the degree to which it is not correct may create an enormous constitutional crisis if its ambiguities are ever exploited.
Joel A. Ready, Esq. is an attorney with the Cornerstone Law Firm, LLC.