Does the 22nd Amendment prevent a president who served two terms from succeeding to the presidency via vice presidency?
Executive summary
The Twenty‑Second Amendment bars anyone from being elected President more than twice but does not unambiguously say that a twice‑elected former president cannot later serve as President by succession after being Vice‑President; leading scholars, the Library of Congress’s Constitution Annotated, and prominent law reviews describe the question as an unresolved constitutional puzzle requiring interpretation of the Twenty‑Second together with the Twelfth and Twenty‑Fifth Amendments and the Presidential Succession Act [1] [2] [3].
1. The textual tension: “elected” versus “ineligible”
The core textual conflict is simple and consequential: the Twenty‑Second Amendment prevents “No person shall be elected to the office of the President more than twice,” which expressly regulates election, whereas the Twelfth Amendment bars “no person constitutionally ineligible to the office of President” from being Vice‑President — leaving open the question whether being barred from election equates to being constitutionally ineligible to hold the office at all [1] [2] [4].
2. How succession would work under the existing constitutional scheme
If a Vice‑President becomes President by death, resignation, or removal of the President, the Twenty‑Fifth Amendment says the Vice‑President “shall become President,” a clear succession rule that has been applied in practice (Ford succeeding Nixon) and codified by Congress’s succession statutes [3] [5] [6].
3. Scholarly fault lines: loophole or contradiction?
Legal scholars are split: some argue the Twenty‑Second’s election‑focused phrasing leaves a “loophole” allowing a twice‑elected former President to be elected Vice‑President and then ascend if the President’s office becomes vacant, pointing to historical practice distinguishing election from succession and to textual readings of the Twelfth as not necessarily importing the Twenty‑Second’s election bar into ineligibility [7] [8] [9]. Others counter that the Twelfth’s ineligibility provision, read with the Twenty‑Second’s policy purpose, supports a narrower construction that would prevent any two‑term President from later occupying the presidency by any route — and the authoritative Constitution Annotated flags the ambiguity without resolving it [10] [2] [4].
4. Practical and institutional checks beyond pure text
Even if a candidate tried this route, political and institutional constraints would be consequential: Congress controls the Electoral College’s procedural rules, the House and Senate certify results and could litigate Electoral College disputes, and courts would almost certainly be asked to resolve the constitutional question if a two‑term ex‑President were elected Vice‑President and moved to assume the presidency — precisely because the matter has never been tested in practice and would raise high‑stakes separation‑of‑powers and democratic‑legitimacy questions [4] [10].
5. What the disagreement means in plain terms
The bottom line is that the Twenty‑Second Amendment does not on its face categorically state that a twice‑elected President may never again “be President” by succession; constitutional commentators therefore call the issue unsettled, and resolution would likely require judicial adjudication or legislative clarification because precedent is lacking and the relevant amendments were drafted to address different contingencies [1] [2] [9].
6. Stakes, motives and who benefits from ambiguity
Public debate over this interstitial question has political overtones — partisan actors may emphasize either the “loophole” or the “ban” depending on the identity of the two‑term ex‑President in question — and the scholarly literature (Minnesota Law Review, Georgetown, law professors cited by the Constitution Center and Library of Congress) illustrates that the ambiguity invites strategic argumentation rather than steady doctrinal consensus [11] [12] [8].