Can a U.S. President Serve a Third Term?
Among legal scholars, pundits, and politicians, the most common answer to this question is no. According to this view, the Twenty-second Amendment (1951) to the Constitution of the United States effectively prohibits any twice-elected president from serving a third term; it also blocks a second elected term for any person who spent more than two years serving or acting as president during a term to which another person had been elected. The first sentence of the amendment reads as follows:
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.
The Twenty-second Amendment was introduced by a Republican-controlled Congress in the wake of the presidency of Democrat Franklin D. Roosevelt (1933–45), who had been elected to four consecutive terms. Roosevelt is the only president in U.S. history to be elected more than twice.
Despite the evident purpose of the Twenty-second Amendment—to limit future presidents to two elected terms—some scholars have argued, based on the literal meaning of its text, that the amendment does not strictly or explicitly deny a third term to a twice-elected president. In their view, and in the amendment’s own language, what it prohibits is only being “elected to the office of the President more than twice.” Twice-elected presidents could thus serve three full terms provided that they succeed an elected president early in the latter’s term. The most likely (but not the only) scenario for gaining an unelected term would be one in which an elected vice president succeeds to the presidency after the elected president dies, is seriously disabled, is removed from office through impeachment, or resigns (as Pres. Richard M. Nixon did in 1974). It follows from this view that a twice-elected president could secure a third term by being elected vice president along with a running mate who resigns as president soon after being inaugurated.
The interpretation of the Twenty-second Amendment affects the plausibility of another argument in favor of the view that a third term for a single president is unconstitutional. The final sentence of the Twelfth Amendment (1804) declares that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.” From the time of the amendment, a candidate would be ineligible to the office under the minimum qualifications established in Article II, Section 1, clause 5 of the U.S. Constitution—that is, being a citizen of the United States who is at least 35 years old and has resided in the country for at least 14 years. If the Twenty-second Amendment can be read as making a twice-elected president “constitutionally ineligible to the office of President,” then that person would also be constitutionally ineligible to the office of vice president—thus preventing the person’s succession to a third presidential term through the resignation of the elected president.
It is technically debatable whether the Twelfth Amendment’s reference to being “constitutionally ineligible to the office” means only being ineligible to serve in—but not also to be elected to—the office of president of the United States. (Still, if one is constitutionally disqualified from holding a certain elected office, then one’s election to that office would presumably be invalid.) Nevertheless, if the Twelfth Amendment refers only to serving, and the Twenty-second Amendment only to being elected, then succeeding to a third term as president through a preliminary election as vice president would not be unconstitutional.
The literal and narrow interpretation of the Twenty-second Amendment is not widely held. Those who take it to mean that twice-elected presidents may not serve a third term argue that interpreting it narrowly would defeat the very purpose of the amendment, which was to prevent anyone “from holding too long the office of Chief Executive” (as noted in 1945 by a Republican senator in support of the amendment) and to prevent “the possibility of an executive dynasty” (as noted in the Senate report accompanying the amendment). The drafters of the amendment were certainly aware that a vice president could succeed to the presidency—the amendment itself refers to such accessibility—but they chose not to formulate it in terms that would explicitly obviate such an action. The reasons for that decision are not clear, but at least one scholar has speculated that the simpler language was part of a compromise that reduced the perceived restrictions on voter autonomy imposed in an earlier draft.
