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Fact check: Does the 22nd AmendmentBar a former two-term president from serving as vice president?
Executive Summary
The text of the Twenty-Second Amendment limits how many times a person may be elected President but does not on its face say a twice-elected President cannot serve as Vice President; the question becomes whether the Twelfth Amendment’s disqualification clause and the Amendment’s purpose together bar that route. Legal scholars are sharply divided: a substantial line of scholarship reads the amendments together to prohibit a “termed out” President from occupying the vice presidency because the Twelfth Amendment bars anyone “constitutionally ineligible” to the presidency from being Vice President, while other experts argue the Twenty-Second only forbids being elected again and therefore a former two‑term President could ascend via succession; resolution would likely require a Supreme Court or political branches’ decision if the scenario arises [1] [2] [3].
1. How the Amendments Read When You Stop Skimming the Text
The Twenty-Second Amendment expressly says a person shall not be elected President more than twice and adds rules for those who succeed to unexpired terms, but it does not use broad language that says a two‑term President is forever “ineligible” to hold the office by any route. Textualists point to the singular verb “elected” as the operative restriction, which means other means of becoming President — for example, succession after serving as Vice President — are not explicitly addressed by the Amendment itself [1] [4]. The Twelfth Amendment contains a separate rule that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice‑President,” and that clause is where the legal dispute concentrates: whether the Twenty‑Second creates a constitutional ineligibility that the Twelfth then translates into a bar on the vice presidency [2].
2. The Argument That a Two‑Term Ex‑President Could Serve as Vice President
A body of scholarship argues that the Twenty‑Second Amendment leaves open non‑elective paths to the presidency and therefore does not create a disqualifying ineligibility for the vice presidency. Proponents of this view rely on narrow textual readings and historical examples: the Amendment’s purpose was to limit election by voters, not to freeze officeholding forever, so a twice‑elected President could be on a ticket as Vice President and potentially succeed for the remainder of a term if circumstances required [3] [5]. These scholars also point to the practical mechanics of elections and succession — the Electoral College and contingent procedures in the House and Senate — to argue the constitutional structure contemplates different methods of assuming the presidency that the Twenty‑Second did not eliminate.
3. The Argument That the Amendments, Taken Together, Close the Door
A contrasting and influential line of commentary reads the Twenty‑Second and Twelfth Amendments together as producing a functional bar. Under this reasoning, the Twenty‑Second makes a person “constitutionally ineligible” for the presidency insofar as it denies election to the office after two terms, and the Twelfth then converts that ineligibility into disqualification from the vice presidency. Advocates for this interpretation emphasize the Amendments’ shared concern with method and eligibility: allowing a two‑term President to run as Vice President would defeat the Twenty‑Second’s purpose by enabling a de facto third term through succession [6] [7]. Prominent legal commentators have said the issue would ultimately be a judicial question if a campaign ever pressed it to the Supreme Court [6].
4. Practical Legal and Political Hurdles That Would Decide the Matter
If a former two‑term President actually pursued the vice presidency, multiple decision points would test these theories: state ballot‑access officials, the Electoral College process, Congress’s role in counting electoral votes, and ultimately the Supreme Court if a litigated claim arose. Courts would face competing interpretive approaches — textualist, intentionalist, and structural — and would likely weigh the Twenty‑Second’s plain language against the Twelfth’s catch‑all ineligibility phrase, as well as precedents on disqualification clauses. Political actors would also shape outcomes: secretaries of state decide ballots, electors vote, and Congress can raise objections; any of those actors could trigger litigation and produce a de facto resolution before the Court steps in [2] [3] [5].
5. What the Disagreement Means for Democracy and Next Steps
The dispute is not merely academic: it implicates the separation of powers, the integrity of term limits, and partisan incentives to test constitutional boundaries. Observers should note the incentives at play — political actors with short‑term gains may press a risky constitutional theory while opponents seek judicial clarity to avert a constitutional crisis. Given the lack of Supreme Court resolution and clear operational rules, the most likely near‑term outcome is that any real campaign would prompt lawsuits and emergency litigation, producing a definitive judicial ruling or a political settlement; absent such a trigger, the legal uncertainty will persist as a matter of constitutional interpretation and competing institutional authority [3] [7] [6].