PRESIDENTIAL TENURE

TWENTY-SECOND AMENDMENT

SECTIONS 1 AND 2. 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 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.

This Article shall be inoperative unless it shall have been

ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years

from the date of its submission to the States by the Congress.

LIMITATION OF PRESIDENTIAL TERMS

“By reason of the lack of a positive expression upon the subject

of the tenure of the office of President, and by reason of a welldefined custom which has risen in the past that no President should

have more than two terms in that office, much discussion has resulted upon this subject. Hence it is the purpose of this . . . [proposal] . . . to submit this question to the people so they, by and

through the recognized processes, may express their views upon this

question, and if they shall so elect, they may . . . thereby set at

rest this problem.” 1 This characterization of the issue, of course,

followed soon after the people had expressed their views by electing Franklin D. Roosevelt to unprecedented third and fourth terms

of office, in 1940 and 1944, respectively.

1 H.R. REP. NO. 17, 80th Cong., 1st Sess. at 2 (1947).

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The Twenty-Second Amendment has yet to be tested or applied. Commentary suggests, however, that a number of issues could

be raised as to the Amendment’s meaning and application, especially in relation to the Twelfth Amendment. By its terms, the TwentySecond Amendment bars only the election of two-term Presidents,

and this prohibition would not prevent someone who had twice been

elected President from succeeding to the office after having been

elected or appointed Vice President. Broader language providing that

no such person “shall be chosen or serve as President . . . or be

eligible to hold the office” was rejected in favor of the Amendment’s

ban merely on election.2 Whether a two-term President could be elected

or appointed Vice President depends upon the meaning of the Twelfth

Amendment, which provides that “no person constitutionally ineligible to the office of President shall be eligible to that of VicePresident.” Is someone prohibited by the Twenty-Second Amendment from being “elected” to the office of President thereby

“constitutionally ineligible to the office”? Note also that neither Amendment addresses the eligibility of a former two-term President to serve

as Speaker of the House or as one of the other officers who could

serve as President through operation of the Succession Act.3

2 H.J. Res. 27, 80th Cong., 1st Sess. (1947) (as introduced). As the House Judiciary Committee reported the measure, it would have made the covered category of

former presidents “ineligible to hold the office of President.” H.R. REP. NO. 17, 80th

Cong., 1st Sess. at 1 (1947).

3 3 U.S.C. § 19. For analysis of the Twenty-Second Amendment and its applicability to the various scenarios under which a person can succeed to the office, see

Bruce G. Peabody and Scott E. Gant, The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment, 83 MINN. L. REV. 565 (1999)..

2296 AMENDMENT 22—PRESIDENTIAL TENURE