Can A President Serve More Than Two Terms?
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There have been musings recently about whether a United States president can serve more than two terms. The conventional wisdom is no—the 22nd Amendment to the Constitution, ratified in 1951, provides that a person can be elected president only twice.
But because of a drafting flaw in the amendment, conventional wisdom may be wrong. A president can indeed serve in the office longer than two terms. Thus, the recent discussions about the possibility that President Trump might want a third term are not really prevented by the Constitution, should he seek to do so.
Let me explain further on the drafting flaw.
Before I had ever heard of private equity, I served for a short period in 1975-76 as chief counsel of the US Senate Judiciary Committee's Subcommittee on Constitutional Amendments. So I have spent some time thinking about the world of constitutional amendments, though I would not claim to be a real scholar in the area.
During my time of service, we passed no constitutional amendments through the Subcommittee—though in earlier years, the Chair of the Committee, Senator Birch Bayh of Indiana, had shepherded three amendments through the Subcommittee, the full Committee, and both houses of Congress: the 25th Amendment (which dealt with presidential disability and succession), the 26th Amendment (giving American citizens the right to vote at age 18), and what would have been the 27th Amendment, had it been ratified by the states (the Equal Rights Amendment).
The Founding Fathers recognized at the Constitutional Convention that their handiwork might need to be changed in the future, and they included two ways for that to occur: a new constitutional convention or an amendment process under which two-thirds of each house of Congress and three-quarters of the states could approve an amendment.
These are not easy standards to achieve. No new constitutional convention has ever been held, and once the initial ten amendments in the Bill of Rights were ratified, only seventeen other amendments have been approved in more than 235 years (and two of those amendments are no longer relevant: the 18th Amendment, which barred the manufacture and sale of alcohol, and the 21st Amendment, which repealed the 18th Amendment).
Stated differently, once the Bill of Rights became part of the Constitution, it has effectively been amended only fifteen times—quite a small number for a document drafted nearly two-and-a-half centuries ago.
And that is apparently what the Founding Fathers intended. They did not want the Constitution changed easily, and it has not been. The last amendment, the 27th, dealt with compensation for members of Congress. It was ratified in 1992, more than three decades ago. It had been in the original Bill of Rights but was not ratified by the states. (This is known as the Madison Amendment, and it says that any increase in congressional salaries can go into effect only after an intervening election has occurred. It was not initially ratified because some citizens did not want members of Congress to ever get a salary increase—before or after an election—or receive a salary at all.)
One subject on which the original Constitution was silent concerned term limits for the US president. At the Convention, Alexander Hamilton proposed having a president serve for life. But that struck many delegates to the Convention as too king-like—precisely what the Revolutionary War was being fought about: freedom from a king.
There were many discussions about how long a presidential term should be, how many terms a president could serve, and how the president was to be elected, but nothing was resolved in the larger discussions. A Committee of Postponed Parts (also known as the Brearley Committee, after Chair David Brearley of New Jersey) was created to develop solutions to various issues on which there had previously been no consensus.
The Committee ultimately developed, with no recorded explanations, these directives on the presidency: a presidential term would be four years; no term limits were imposed; an Electoral College was to be created for presidential elections with electors to be chosen by each state; and a vice president would succeed a president unable to continue serving. Perhaps no limits were imposed on a president’s term because it was widely recognized that George Washington would be the first president, and the delegates did not want to offend him by limiting the time he could serve.
Indeed, Washington was unanimously elected in 1789 as the first president. This was despite the fact that he did not truly want the position, feeling he had already served his country as the commanding general during the Revolutionary War and as the presiding officer of the Constitutional Convention. Too, no male member of his family had lived past the age of fifty, and Washington was already 57. That concerned him. Was he tempting fate by taking on an arduous position at what he held was an “advanced” age?
Despite that concern, Washington agreed to serve if elected. However, he soon realized that he did not enjoy the position and thought seriously about resigning after just two years—prompted in part by unpleasant dealings with the Senate in trying to get advice on treaty negotiations. But Washington stayed, though he never again visited the Senate to seek advice.
However, Washington was determined to serve just one four-year term and asked James Madison to draft a farewell letter to that effect. But in the end, Madison and Hamilton convinced Washington to serve another four-year term—to which he was also elected unanimously. As that second term was coming to an end, Washington was again determined not to run for an additional term. This time, he asked Hamilton to modify the letter previously written by Madison, and Hamilton did. Washington followed through this time, and the Farewell Address, as it became known, was published in a newspaper (Claypoole's American Daily Advertiser) rather than delivered in person by Washington. Washington's vice president, John Adams, was elected the next president. (In retirement, a few friends importuned Washington to return to elected office, but he was never seriously interested in doing so.)
From that time forward, Washington’s two terms became the unofficial limit on how long a president could serve. No president really thought about serving more than two terms—or at least none actually tried to do so—until Ulysses Grant. He was elected twice, in 1868 and 1872. Near the end of his second term, Grant, then only 54, considered a third term, but scandals in his last years made him less popular. So, he did not run again, but he embarked on a two-year global tour, where he was greeted with great fanfare by leaders from around the world. Upon returning to the United States, Grant decided to try to get elected again in 1880, but lost the nomination to James Garfield, ending his Presidential aspirations.
Another president who considered breaking the unofficial two-term limit was Theodore Roosevelt. He became president in 1901 upon the assassination of William McKinley. Roosevelt served the remaining three and half years of the term and then was elected in his own right in 1904. There were no legal constraints upon running and getting elected again (he had not technically served two full terms), but in the end, Roosevelt pledged not to run for a third term, choosing instead to help his good friend and Secretary of War William Howard Taft get the 1908 Republican nomination. Roosevelt then left for a year-long hunting trip to Africa.
Upon returning, he was disappointed that Taft had been more pro-business than Roosevelt felt was warranted, and he ultimately decided to seek the Republican nomination 1912. But Taft prevailed in getting the Republican nomination, prompting Roosevelt to form the Progressive—or “Bull Moose” Party—and secure its presidential nomination that year.
With Taft and Roosevelt essentially splitting the Republican vote, Woodrow Wilson won the 1912 presidential election. Wilson was reelected in 1916 and suffered a debilitating stroke in 1919, but nonetheless mused about seeking a third term. His health did not make that possible, and he retired after his second term.
So the informal two-term limit was still in effect until Franklin Roosevelt came along. He was elected in 1932 and re-elected in 1936. As that term was ending, Roosevelt felt that although the United States was not directly involved, the war in Europe justified breaking the informal two-term limit. Without announcing a campaign, Roosevelt accepted his party’s nomination in 1940 and was handily reelected. He campaigned on the idea that he had kept the United States out of the war and could continue to do so. There were many Republicans who argued that the two-term limit should be honored, but Roosevelt had no trouble defeating lawyer and businessman Wendell Wilkie.
After the attack on Pearl Harbor, the United States entered the war, though Roosevelt's popularity was not adversely affected. By arguing that he was essential to winning the war, Roosevelt ran and won a fourth term in 1944. His opponent, New York Governor Tom Dewey, argued that letting someone have four terms as president was a terrible precedent. Nonetheless, Roosevelt won quite easily—despite being so ill that he only lived eighty-three days into his new term, dying on April 12, 1945.
The fact that Roosevelt was able to secure four terms prompted many Republicans in Congress to support a constitutional amendment limiting presidents to two terms. The amendment was first proposed in 1944 and passed by Congress in 1947 with President Truman’s support. The states did not move quickly to approve the amendment, but it was finally ratified in 1951. The next year, Republicans nominated Dwight Eisenhower for president, and he served two terms. Ironically, he probably could have been easily elected to a third term, but was barred by the amendment the Republicans had so avidly sought. Be careful what you wish for. (As a young boy I remember seeing Eisenhower on TV. He seemed so old, but he would have been 70 at the start of his potential third term—young by today’s standards.)
Despite its intent, the amendment that is now part of the Constitution was not drafted in a way which would actually prohibit someone from serving a third term as president. This is the relevant text:
“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 text makes it clear that someone cannot be elected President more than two times. However, this is the flaw in the text: someone elected as president twice could subsequently be elected vice president. Then, by pre-arrangement, the elected president could agree to step down. Doing so would enable the vice president to become president, since that person was not elected president a third time. Moreover, the elected president who stepped down could be appointed vice president by the new president under the provisions of the 25th Amendment. (However, this would not necessarily have to occur; someone else could be appointed vice president, subject to congressional confirmation.)
To be sure, under such a scenario in the United States, voters would presumably be told about this plan. And if that ticket were elected, the voters would, in effect, have approved this type of presidential-vice presidential switch.
Would any of this be barred by the 12th Amendment? That amendment, which deals with presidential and vice-presidential elections, states in its last sentence:
“But no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.”
But the law in the 22nd Amendment would not seem to make a twice-elected president ineligible to serve as president.
There are other scenarios where a president could possibly serve a third term, but none of them seem as realistic as the reversal described above.
One is to have a new Constitutional Convention, though there is no discussion in the current Constitution about how that might be achieved. But such a new convention—if any could be called—would no doubt engender enormous political opposition and legal challenges. And such a Convention would likely be free to re-write any part of the current Constitution. That would no doubt produce significant chaos and uncertainty and thus seems a bit of a non-starter.
A second, more conceivable, possibility is to have an amendment repealing the 22nd Amendment. But given the fact that such an amendment would likely be seen as enabling a third term for President Trump, it is hard to see how two-thirds of both the House and Senate, and three-quarters of the states, would approve.
A third possibility is to amend the 22nd Amendment to permit a third term if the previous two terms were not served consecutively. Legislation to that effect has been introduced in Congress recently.
A fourth possibility is to simply ignore the 22nd Amendment, run for reelection, win, and just stay in office, perhaps supported by the courts.
Each of these four scenarios seem unlikely to be used—or to succeed—especially when the flaw in the 22nd Amendment is readily available, though not without its own controversy. Presumably, there would be court challenges, but they seem unlikely to prevail.
In sum, it is not impossible that a president could serve a third term under the existing laws.