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Fact check: Could a former two-term president be appointed vice president under the 25th Amendment and then succeed to the presidency?
Executive Summary
A former two-term president can be nominated and confirmed as vice president under the 25th Amendment because the Amendment’s text allows the president to nominate a vice president to fill a vacancy with Congressional confirmation, and it does not itself prohibit a former two-term president from serving in that role. Constitutional scholars and contemporary reporting disagree about whether the 22nd Amendment bars a twice-elected president from later serving as vice president and thereby potentially returning to the presidency; the issue remains legally unsettled and would likely require Supreme Court resolution if ever tested [1] [2] [3] [4]. Practical political and institutional checks—Congressional confirmation and potential litigation—would be decisive in any real-world scenario [1] [5].
1. Why the 25th Amendment opens the door — and where the text stays silent
The 25th Amendment’s Section 2 empowers the president to nominate a replacement vice president when the office is vacant, subject to majority confirmation in both houses of Congress; that procedural mechanism does not include a substantive bar against former presidents. The Amendment’s ratification in 1967 clarified succession and disability procedures following historical ambiguities in Article II, but it was not drafted to alter eligibility requirements otherwise set by the Constitution. Multiple summaries of the Amendment emphasize its procedural focus — nomination, confirmation, and succession — without addressing the 22nd Amendment’s limits on terms [1] [6] [4]. This textual gap is central to the unresolved legal debate: the 25th provides the path for appointment but does not answer whether that path can be used by someone previously elected twice.
2. The 22nd Amendment fight: two interpretations clash in scholarship and press
The 22nd Amendment prevents a person from being elected president more than twice, but its text does not explicitly say a two-term former president cannot serve as vice president or later become president by succession. One line of constitutional analysis argues the Amendment’s purpose—preventing prolonged electoral incumbency—does not extend to blocking succession, so a former two-term president could succeed to the presidency and complete the remainder of a term [3] [7]. A contrasting, politically wary view holds that allowing such a pathway would circumvent the democratic restraint the 22nd Amendment intended; some journalists and legal commentators therefore conclude the question is unresolved and could be litigated if attempted [2] [7]. Both positions hinge on textual interpretation and differing inferences about constitutional purpose.
3. Congress and courts would be the immediate gatekeepers — not just theory
If a president nominated a former two-term president as vice president under the 25th Amendment, Congress would have to vote to confirm, offering an important political filter. Contemporary analyses stress that confirmation hearings would become forums for testing both the 22nd Amendment claim and public opinion, and a close or contentious confirmation could trigger litigation almost immediately [1] [5]. Legal suits challenging the appointment’s constitutionality would likely reach federal courts and could be expedited to the Supreme Court, making the procedural reality as decisive as the abstract textual debate. The constitutional framework thus puts institutional brakes on the path from nomination to succession, even if the 25th Amendment technically permits nomination.
4. Historical context and precedent supply little but useful guidance
Historical cases involving the 25th Amendment and midterm vice presidential appointments—such as Gerald Ford’s 1973 confirmation to the vice presidency after Spiro Agnew’s resignation—illustrate the Amendment’s practical operation but do not resolve the two-term question because Ford had not previously served two elected terms as president [8]. The Amendment was ratified to remedy succession ambiguities and has been used to fill vacancies and handle temporary transfers of power, but there is no direct precedent for appointing a twice-elected president as vice president and then having that person succeed to the presidency. Scholars and contemporary writers therefore rely on constitutional text and principle rather than clear historical practice to frame competing arguments [8] [6].
5. What a final outcome would likely look like: litigation, political calculus, and constitutional clarity
Were a former two-term president nominated, the immediate outcome would be a blend of political contest and judicial determination: Congress would decide confirmation amid public and partisan pressure, while courts would confront a novel constitutional clash between the 22nd and 25th Amendments. Recent legal commentary concludes the Constitution does not definitively resolve the conflict and that a Supreme Court ruling would be required to establish a binding interpretation [2] [3] [4]. The practical deterrents—confirmation difficulty, political backlash, and the uncertainty of litigation—make the scenario legally ambiguous and politically fraught, even as the 25th Amendment itself permits the nomination and succession mechanism.