Does the 22nd Amendment explicitly bar a former two-term president from being vice president?
Executive summary
The Constitution’s 22nd Amendment says only that “No person shall be elected to the office of the President more than twice,” which on its face limits election, not all service; legal scholars and official commentaries disagree over whether that wording permits a two‑term former president to serve as vice president and then become president again (see Constitution text and commentary) [1] [2]. Major mainstream legal voices call the “vice‑president loophole” implausible and contrary to the amendment’s intent, while law review and independent commentators argue the text leaves a possible opening that has never been tested in court [3] [4] [2].
1. What the 22nd Amendment actually says — plain text and congressional annotation
The 22nd Amendment’s operative language bars being elected to the presidency more than twice; it does not explicitly state “cannot hold” the office after two elections, and the Library of Congress’s Constitution Annotated notes that the Amendment “bars only the election” of two‑term presidents and does not expressly prevent someone who had twice been elected President from later succeeding to the office after having been elected or appointed Vice President [1] [2]. That textual distinction—“elected” versus “eligible to hold”—is the starting point for the dispute [2].
2. The counterargument: the 12th Amendment closes the door
Opponents of the loophole theory point to the 12th Amendment’s last clause: “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice‑President.” Scholars and many legal commentators read that sentence as a backstop: if the 22nd Amendment makes a person constitutionally ineligible to be President, the 12th then makes them ineligible to be Vice‑President as well [2] [3]. Major outlets summarizing expert opinion say leading legal scholars find the loophole “implausible” and contrary to the 22nd Amendment’s clear intent [3].
3. The pro‑loophole textual argument
A body of scholarly argument and some law‑blog commentary emphasizes the precise wording: because the 22nd Amendment restricts only election to the office, a twice‑elected former president could—so the argument goes—be eligible for vice‑presidential election, and could become President through succession (death, resignation, removal) without violating the Amendment’s “elected” prohibition [4] [5]. Proponents stress that the 12th Amendment, written earlier, could not have contemplated the 22nd’s later text and that the Constitution’s literal wording would control in a legal challenge [4].
4. Official history, intent and unresolved law
Congressional materials and historical reports show lawmakers debated broader formulations but chose the narrower “elected” language; the Constitution Annotated and Constitution Center trace that legislative history and highlight the unresolved tension with the 12th Amendment [5] [2]. No case has tested this issue: “the practical applicability of this distinction has not been tested,” the publicly available constitutional summaries note, leaving the matter legally unsettled absent litigation or a constitutional amendment [6] [2].
5. How courts and mainstream experts assess the risk
Mainstream reporting and fact‑checking of the 2025‑era debate around a potential plan for a twice‑elected president to run as vice president conclude that courts are likely to reject the scheme as defeating the amendment’s purpose and that leading legal scholars call the loophole argument weak—though they acknowledge the final word would come from litigation or constitutional amendment [3] [7]. Northeastern and other law professors tell reporters the question would ultimately be resolved in court if pursued [7] [3].
6. Practical and political considerations beyond the text
Even if a narrow textual path existed, political barriers are formidable: Congress, state officials who certify elections, and the courts would confront an obvious attempt to circumvent a widely understood constitutional limit. Several outlets note both the legal and reputational risks of pursuing such a gambit, and that the framers of the 22nd Amendment and later commentators expected the two‑term rule to be meaningful [5] [3].
7. Bottom line for readers
Available sources show a genuine textual debate: the 22nd Amendment explicitly bars only being “elected” a third time, which some scholars read as leaving a procedural opening; other legal scholars, authoritative annotations and mainstream fact‑checkers regard that opening as legally implausible and inconsistent with the 12th Amendment and the Amendment’s intent [1] [4] [3] [2]. The issue remains untested in court and unresolved in practice, so any plan relying on the “vice‑president loophole” would face immediate constitutional litigation and heavy political scrutiny [3] [2].