The 22nd Amendment doesn’t say what you think it says
The 12th Amendment only states that one who is “constitutionally ineligible to the office of President” cannot be Vice President. The 22nd Amendment’s language is limited to those who can be “elected to the office of the President.” As discussed below, there are three (sort of four) separate ways one can become President. The 22nd Amendment’s text only bars a “termed out” President from one of those ways of becoming President.
A Quick History of the 22nd Amendment
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.
The Text of the 22nd Amendment
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’s not clear about that?
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.
The plot gets more interesting: the final line of the 12th Amendment provides that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” So a “termed-out” President can’t be Vice President, right?
Four Ways to Be President: First, he can be “elected” by the Electoral College
The short answer is no. There are four different ways that someone can exercise the office of President. The first is to be “elected” President. This is the term used exclusively of the electoral college’s choice of a President in Article II and in the 12th Amendment.
Second: The House of Representatives Chooses a President
The second way to be president is to be “chosen” president by the House of Representatives in those unusual situations where no candidate for President obtains a majority of the electoral college. The 12th Amendment, carefully tracking and rewriting the language of Article II, Section 1, refers to the House’s right to “choose” the President three times, and in a fourth reference, speaks of “when the right of choice shall devolve upon them.” (See also the same use of the term in Section 4 of the 20th Amendment).
The 20th Amendment was passed to change the timelines for inauguration and to clarify what happens if no President is “chosen” by the House, or if the elected or chosen President dies before inauguration. It uses the word “choice” in reference to the House. Section 3 of the 20th Amendment provides the failsafe as follows: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall qualify” (more on that below).
Third: In the line of succession, the Vice President “Becomes” President if the President dies, resigns or is impeached and removed from office.
The 25th Amendment, Section I codified the Tyler Precedent and established that the VP becomes President if his office is vacant: “In the case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” Whoever is next in the line of succession “becomes” the President.
Fourth (sort of): A VP or other person in the line of succession may “act” as President during Presidential inability.
The Constitution, in Article II, Section 1, originally provided, “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…” This famously ambiguous phrase left much to be desired. Did the VP “become” president as discussed above? Was he only the “acting” President?
The 25th Amendment clarifies in Section 1 that the VP does actually “become” President in every sense when the President dies, resigns or is “removed” from office. But Sections 3 and 4 provide that the VP or another officer becomes (and notice the capital letters in the actual amendment) “Acting President.” In the three times this has been invoked in Presidential history, the individual who invoked it was never seen as “President,” but merely as the guy in charge for a while. (No one has offered Dick Cheney a Presidential Library, nor is he numbered as President 44, even though he served twice as Acting President).
So how does this work?
Accordingly, although there is a requirement that the Vice President must be eligible to become President, there are other ways to “become” President other than “election.” The 12th Amendment 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.
The 22nd Amendment Nods at this Distinction
Before you say we’re crazy, take another look at the distinctions that the 22nd Amendment itself draws. Keep in mind that it was passed before the language of the 25th Amendment was proposed or became law. But even so, it goes to great lengths to emphasize a difference between “election” and other ways of “holding” the office of President:
“…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.”
While the Amendment’s drafters spilled extra ink ensuring that someone who is elevated to the Presidency for more than two years of another President’s term due to that other President’s death or removal from office, it does nothing to clarify that one who is elected twice cannot rise to the Presidency again. In short, if the 22nd Amendment’s purpose was to ensure that there was a 10 year maximum on service for anyone regardless of how they became President, it could have said so.
Doesn’t that violate the spirit of the 22nd Amendment?
Since this article first appeared on our website more than five years ago, we’ve gotten a fair amount of emails arguing that this would violate the “spirit” of the 22nd Amendment. In short, we can’t say for sure that this is how the Supreme Court (or some other body such as Congress) would view the 22nd Amendment. But this issue has been raised before, and the language of the Constitution controls us, not what we think it should have said or what we prefer that it means. This is because we are a government of laws and not of men.
Conclusion: The two-termers can come back! But it’s unlikely
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. Alternatively, a past popular President could become Speaker and Act as President or become President through constitutional means.
Former Secretary of State Dean Acheson might have the best line on this topic: “it may be more unlikely than unconstitutional.”
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. The Constitution is an incredible document and is worthy of careful reading and study. You never know what ambiguities might be there underneath the surface.
Joel A. Ready, Esq.
Updated July 2024