The Twenty-Second Amendment, which limits election to the presidency to two terms, was clearly a reaction to Franklin Roosevelt’s precedent-shattering election to not only three, but four, consecutive terms in the White House. And because the current incumbent of the White House has been suggesting he might (try to) run for a third term in 2028, it’s worth taking a moment to review it.
There had been a long-standing tradition since George Washington that presidents would serve only two terms, but there was no constitutional limit to doing so. In 1940, with a war ongoing in Europe, and having 8 years’ experience as president, Roosevelt argued it was a dangerous time to “switch horses in mid-stream.” He therefore announced that he would indeed seek a third term that autumn.
He did not attend the Democratic convention that year but instead sent First Lady Eleanor Roosevelt to appear before the delegates. In her speech, she indirectly addressed the concerns about the president running a third time. Noting the uncertainty in world affairs, she declared that it was “no ordinary time” and that the president therefore wanted to keep an experienced hand in office for the next four years.
Roosevelt, of course, was not only re-elected in 1940, but then chose to run yet again in 1944. While there are good arguments why the third time might have been a good idea (war indeed came just over a year later), his decision to run in 1944 now seems like nothing but pure hubris. By then, the war was winding down and his health was poor — more than 20 years of polio had left his body overtaxed, he suffered from hypertension and arteriosclerosis, and there is photographic evidence he had a cancerous mole above his left eye removed sometime in 1944. And then he did die, just 82 days into that fourth term.
And so, when the Republican party captured both houses of Congress in 1946, they quickly passed what became the Twenty-Second Amendment. It consists of only one paragraph of two sentences. The first sentence reads: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.” (The rest of the paragraph is obsolete; it simply precludes its application to whoever was in office if the Amendment passed.)
It was ratified in 1951, and, until now, no one has seriously argued that a president can serve more than 10 years: two full terms plus the two years after succeeding to the office as vice-president. Its initial impact was to keep the next two presidents who served two full terms, Dwight Eisenhower and Ronald Reagan, both Republicans, from running for a third term.
As the saying goes, be careful what you wish for.
Those who support the current president’s quixotic claims that he has “methods” to serve after 2028 suggest that the amendment only says that no one shall be “elected” president more than twice. In theory, this could permit someone from becoming president through some other mechanism, such as succeeding to the office after serving as vice-president, or after serving as Speaker of the House.
But as many legal commentators have noted, the language is clear that no one who becomes president after service as vice-president can serve more than two years of his predecessor’s term. Furthermore, the Twelfth Amendment provides that one cannot even run for vice-president if they are constitutionally ineligible to be president.
And the biggest objection is likely that, regardless of its wording, the amendment was passed in 1947 — just two years after Roosevelt’s death, in the middle of what would have been his fourth term. One can argue that the terminology might have been clearer — to state that no person could serve as president for more than two terms or 10 years, for example. But if this issue ends up in court — and should the current incumbent seek yet another nomination it certainly will, because many states will refuse to put his name on the ballot — a court might well conclude that arguments about avoiding another “election” but becoming president through some non-electoral route, exalt grammar and wordplay over logic and legislative history.
After all, the Congress that proposed the amendment, and the states that ratified it, simply did not want someone to serve more than two full terms, plus up to two years after their predecessor died. And that might well persuade a court to reject his candidacy.
So, as the saying goes, stay tuned.
Frank Zotter, Jr. is a Ukiah attorney.
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