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Fact check: Can a president who has served two terms be elected to the vice presidency and then assume the presidency again?
Executive Summary
A constitutional wrinkle lets reasonable legal scholars disagree: the 22nd Amendment clearly bars any person from being elected President more than twice, but it does not explicitly say a two-term former President cannot be vice president or succeed to the office without a new election. Most mainstream scholars and courts are likely to treat any scheme to revive a two-term President through the vice presidency as constitutionally suspect and vulnerable to litigation, but academic arguments exist that succession might not violate the Amendment’s literal text [1] [2] [3].
1. The Textual Puzzle that Sparks the Debate
The 22nd Amendment says “no person shall be elected to the office of the President more than twice,” which expressly targets the act of election rather than the act of service; that textual choice is the core legal hinge for both sides. Some scholars read that language literally: because the Amendment confines itself to election, it does not by its words forbid a two-term President from later being chosen as Vice President and then becoming President by succession, meaning a textualist argument supports the possibility of revival by succession [1] [4]. Conversely, many contemporary commentators argue that the Amendment’s purpose was to prevent a third term of service in any practical form, so the literal wording should be read in light of intent, historical context, and the Amendment’s structural role in the constitutional order [5] [6].
2. Scholarly Arguments That a Loophole Exists
A minority of constitutional scholars have laid out mechanisms through which a former two-term President could re-enter the presidency: being elected Vice President, then succeeding after the President’s death, resignation, or removal, or negotiating ticket swaps and resignations timed to enable succession. These analyses rely on historical readings of amendment drafting and succession clauses and conclude a straightforward textual path could, in theory, permit a third span of presidential service [2]. Those writings are careful to note the hypothesis involves unlikely political choreography and would invite immediate litigation; they present legal possibility, not inevitability.
3. Mainstream Legal Opinion: Courts Would Probably Close the Loophole
Leading election-law scholars and prominent commentators assert the 22nd Amendment’s spirit and likely judicial interpretation block such a maneuver: courts would construe the Amendment to prevent what they regard as an obvious end-run around term limits. These voices emphasize institutional norms and doctrine—avoidance of results that subvert constitutional design—making judicial acceptance of a vice-president-as-third-term scheme unlikely [3] [7]. Recent journalistic analyses and law professors writing around 2024–2025 express strong skepticism that courts would permit an organized attempt to restore a two-term President via vice-presidential election [5] [8].
4. Political Realities and Litigation Dynamics That Would Decide the Outcome
Beyond abstract textualism, the practical battlefield would be politics and emergency litigation. Any attempt to execute this route would trigger immediate challenges from Congress, state officials, and private parties, leading to fast-moving litigation potentially reaching the Supreme Court before any effective tenure could be consolidated. The combination of political backlash, contemporaneous statutory elections law, and emergency judicial interventions creates high practical barriers even if a narrow textual argument exists [9] [6]. Moreover, political actors have incentives to resist perceived subversions of the two-term norm, increasing the likelihood that mechanisms short-circuiting the Amendment would be blocked administratively or legislatively.
5. What This Means Going Forward: Certainty Is Low, Risk Is High
The scholarly record shows credible voices on both sides: some present a plausible textual loophole that a succession-based return could exploit, while most prominent legal scholars and commentators treat that loophole as unlikely to survive judicial and political scrutiny [2] [3] [7] [5]. The bottom line is pragmatic: while not wholly impossible on paper, attempting to circumvent the 22nd Amendment by running for vice president and then reclaiming the presidency would be legally contentious, politically destabilizing, and almost certain to be litigated to the highest court. Policymakers who seek certainty would need either a constitutional amendment or clear statutory and constitutional adjudication to remove ambiguity [9] [8].