The Presidential Term Limits Amendment

Section 1. 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 President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

—Judge Chad A. Readler & Andy Nolan

Introduction

Until 1951, Presidents traditionally served for a maximum of two terms. In their attempts for a third term, Ulysses Grant in 1880 and Theodore Roosevelt in 1912 tried unsuccessfully to break that tradition. Franklin Roosevelt circumvented the two-term tradition in 1940 and 1944 with his third and fourth terms. In response, Congress considered a two-term limit for Presidents. Congress eventually approved the proposition and sent the amendment to the states for ratification, which proved to be a slow process. The amendment was ratified in 1951, four years after Congress had sent it to the states. Since the amendment’s ratification, there have been calls to repeal and end term limits, but the two-term limit remains, and theorized methods to circumvent the amendment have not been tested.

The Two-Term Tradition

The two-term tradition began in 1797 with George Washington’s decision not to pursue a third presidential term.¹ Washington rejected pressure to return for a third term, emphasizing growing partisanship and a desire to retire.² Similar to Washington, Thomas Jefferson did not seek reelection for a third term at the conclusion of his second term in 1808.³ From 1808 to 1880, the two-term tradition remained unchallenged. Popular Presidents such as James Madison, James Monroe, and Andrew Jackson similarly did not seek reelection at the conclusion of their second terms.

In 1880, Ulysses Grant attempted to break the “no third term” precedent,⁴ but his efforts stalled as he lost the Republican nomination.⁵ Grover Cleveland stood for election three times, winning his first and third contests,⁶ and Theodore Roosevelt famously ran for (and lost) a third term in 1912, his first term having begun following William McKinley’s death in office.⁷ Some scholars suggest that Calvin Coolidge considered a third term; his initial term had been an abbreviated one following Warren G. Harding’s death while in office.⁸ These candidates enjoyed the legal right to run for a third term, but there was stiff popular resistance because of the two-term tradition. The public’s philosophical opposition to a third term is thought to have played a major role in the electoral defeats of both Grant and Roosevelt,⁹ and by the 1930s, the two-term norm was firmly established.

In 1940, as President Franklin D. Roosevelt’s second term drew to a close, opposition to a third term stiffened. Eight states passed resolutions calling for limitations on presidential tenure.¹⁰ Ultimately, the issue would break down along partisan lines. Roosevelt was a Democrat, and the Republican Party platform, both in 1940 and 1944, called for limiting a President to two terms.¹¹ Wendell Willkie, the 1940 Republican nominee, announced that he would seek a ban on third terms if elected.¹² In response, Roosevelt justified his decision to seek a third term as made necessary by an “overriding public danger” prompted by World War II.¹³ In the end, resistance to the third term would not be decisive at the ballot box—Roosevelt was reelected in 1940 and 1944—but interest in presidential term limits remained, and current events would keep the issue at the forefront of public attention. In his third term, Roosevelt was perceived as having health concerns that impaired his performance.¹⁴ He would die in 1945, just eighty-two days into his fourth term.

Drafting the Twenty-Second Amendment

In 1947, Republicans regained control of Congress. The 80th Congress considered two proposals that would have imposed term limits: one to limit the President to a single six-year term and one to impose a limit of two four-year terms.¹⁵ Only the latter garnered any consideration.¹⁶ The day it first considered the proposal, a House Judiciary subcommittee favorably reported the idea to the full committee.¹⁷ Just two days later, the full committee approved the proposal,¹⁸ and despite Democratic accusations that the amendment was “anti-Roosevelt,” the House overwhelmingly approved the two-term limitation.¹⁹

The House version, however, raised concerns in the Senate.²⁰ The language was broad: It provided that no person would be eligible for reelection who served any part of two terms.²¹ The Senate Judiciary Committee worried that “[s]imply because a man might hold office or act as president for a few days or months,” that person should “not arbitrarily be foreclosed from serving two further full terms of 4 years each.”²² Private meetings between Senators Robert Taft (R–OH) and Millard Tydings (D–MD), among others, brought about a compromise.²³ In this version, someone who “succeeded to the presidency” but served “less than two terms” could be “elected president twice” in his “own right.”²⁴ President Harry Truman would be exempted from the new rule.²⁵

Unlike some state constitutions, the text contains no exception for non-consecutive terms.²⁶ The two-term limit drops to one election if the individual has occupied the presidency for more than two years without having been elected. Such a scenario would arise if the sitting President resigned, died, or was removed from office.²⁷ For example, President William McKinley began his first term in 1897 and his second in 1901. After McKinley’s assassination later that year, Vice President Theodore Roosevelt became President. Roosevelt served the last three years of McKinley’s term and was reelected in 1904. Had the amendment been in effect at the time, it would have barred Theodore Roosevelt from standing for a third term in 1912.²⁸

When the final language was brought to the floor, it was approved by the Senate.²⁹ The House followed suit one week later, sending the amendment to the states for ratification on March 21, 1947.³⁰

Ratifying the Twenty-Second Amendment

Congress set a seven-year time limit for ratification.³¹ Ratification required the approval of thirty-six states, but state-level discourse was not robust. Rather, as a 1967 magazine noted, the amendment “slipped through . . . state legislatures almost without notice.”³² Within roughly two months of congressional approval, eighteen states ratified the Amendment with very little debate.³³ The amendment’s chances were somewhat in doubt from 1948 through 1950. In the first two months of 1951, however, thirteen newly constituted state houses ratified the amendment.³⁴ On February 27, 1951, Minnesota became the thirty-sixth state to ratify the Twenty-Second Amendment, leading to its adoption.³⁵ All told, only the Twenty-Seventh amendment took longer to ratify.³⁶

The pace of ratification resulted in a limited historical record,³⁷ but some observations can be gleaned from the ratification debates. For one, the primary drive to ratify came from a desire to curb executive authority. The states were particularly receptive to this view, as many had already term-limited their governors.³⁸ For another, the push to limit executive power came in the wake of the rise of the modern presidency as well as then-recent American brushes with dictatorships.³⁹ Politics also played a role. The bulk of the ratifying states had Republican-led state houses, and a handful of conservative Democratic states cemented the amendment’s enactment.⁴⁰

Some scholars reviewing the ratifying debates have understood the amendment as both a posthumous rebuke of Roosevelt and an affront to the office’s then-occupant, an increasingly unpopular Truman.⁴¹ But nakedly partisan arguments invoking either Roosevelt or Truman appear to be absent from the advocacy favoring the amendment.⁴² Rather, the amendment seemingly is better understood as giving “legal effect” to the two-term tradition.⁴³

Calls for Repeal

Calls for the repeal of the Twenty-Second Amendment have surfaced on occasion. In the 85th Congress, five repeal bills were introduced.⁴⁴ At the time, then-President Dwight Eisenhower’s popularity was a major motivator,⁴⁵ but opponents, echoing sentiments from the nation’s Founding, claimed that the amendment’s demise would contribute to a harmful culture of irreplaceable Presidents.⁴⁶ Others worried that the political effort required to accomplish rescission would distract from other important priorities.⁴⁷ Even Eisenhower demurred on the prospect of a third term were one available.⁴⁸

Not all other Presidents have been as circumspect. Ronald Reagan spoke out in favor of ending term limits during his presidential tenure, stressing that he did not seek to take advantage of the potential opportunity for himself but nevertheless sparking renewed energy for repeal.⁴⁹ Legislative efforts have been made from time to time ever since then.⁵⁰

Open Questions

As with other constitutional provisions, commentators have questioned the amendment’s scope. At least one scholar has asked whether a popular President could circumvent its restrictions by running as Vice President and taking over for a President who would subsequently step down.⁵¹ In so suggesting, it has been emphasized that the amendment bars being thrice “elected” to the office, not serving in it more than twice. That possibility, however, arguably is in tension with the Twelfth Amendment, which provides that anyone ineligible to be President is likewise disqualified from the vice presidency.⁵² Professor Derek Muller has observed that the “stronger view may be that once a President has met the term limits of the Twenty-Second Amendment, he is ineligible.”⁵³ Likewise, Article IV’s Guarantee Clause has been raised as an obstacle to this proposal.⁵⁴ However, until a twice-elected President chooses to test this proposition, these debates remain purely academic.

1. George Washington, Farewell Address (Sept. 17, 1796), https://perma.cc/2ZNN-BRHF. ↩︎
2. Letter from George Washington to Jonathan Trumbell Jr. (July 21, 1799), https://perma.cc/HB2N-AKQ5. ↩︎
3. Thomas Jefferson to the Citizens of Washington, D.C. (Mar. 4, 1809), https://perma.cc/MB2V-UK6X. ↩︎
4. Stephen W. Stathis, The Twenty-Second Amendment: A Practical Remedy or Partisan Maneuver, 7 Const. Comment. 61, 63–64 (1990). ↩︎
5. Willis Thornton, The Third Term Issue: Hot Potato of American Politics 51–57 (1939). ↩︎
6. Michael J. Korzi, Presidential Term Limits in American History: Power, Principles & Politics 64–65 (2011). ↩︎
7. Bruce G. Peabody & Scott E. Gant, The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment, 83 Minn. L. Rev. 565, 583 (1999). ↩︎
8. Earl Spangler, Presidential Tenure and Constitutional Limitation 9 (1977). ↩︎
9. Thornton, supra at 51–57, 69–71. ↩︎
10. Stathis, supra at 65. ↩︎
11. Peabody & Gant, supra at 586–87. ↩︎
12. Id. ↩︎
13. Franklin Delano Roosevelt, Speech to Democratic National Convention (July 19, 1940), https://perma.cc/AG6G-BSH3. ↩︎
14. Korzi, supra at 113–15, 119–23. ↩︎
15. Stathis, supra at 66; 93 Cong. Rec. 846 (1947). ↩︎
16. Stathis, supra at 66. ↩︎
17. 93 Cong. Rec. 863–64 (1947). ↩︎
18. Id. ↩︎
19. Id. at 872 (1947); Stathis, supra at 67; Martin B. Gold, The Twenty-Second Amendment and the Limits of Presidential Tenure: A Tradition Restored 235 (2019). ↩︎
20. Stathis, supra at 67. ↩︎
21. Id. ↩︎
22. S. Rep. No. 80-34, at 3 (1947). ↩︎
23. Stathis, supra at 68. ↩︎
24. Id. ↩︎
25. Gold, supra at 244–45. ↩︎
26. Ga. Const. art. 5, § 1, ¶ 1; Va. Const. art. 5, § 1. ↩︎
27. U.S. Const. amend. XXV, §§ 1, 4. ↩︎
28. Nathan Miller, Theodore Roosevelt: A Life 350 (1992). ↩︎
29. 93 Cong. Rec. 1978 (1947). ↩︎
30. Id. at 2392 (1947); Stathis, supra at 68; Gold, supra at 250. ↩︎
31. 93 Cong. Rec. 1800 (1947). ↩︎
32. Henry Steele Commager, To Form a Much Less Perfect Union, N.Y. Times Mag. (July 14, 1963), at 5. ↩︎
33. Staff of S. Subcomm. on the Const., 99th Cong., Amendments to the Constitution: A Brief Legislative History 72 (Comm. Print 1985). ↩︎
34. Id. ↩︎
35. Id. ↩︎
36. David Huckabee, Cong. Rsrch. Serv., 97-922 GOV, Ratification of Amendments to the U.S. Constitution 4 (1997), https://perma.cc/ST83-S557. ↩︎
37. J.W. Peltason, Cowin & Peltason’s Understanding the Constitution 367 (12th ed. 1991). ↩︎
38. Bernard Lemelin, Opposition to the 22nd Amendment: The National Committee Against Limiting the Presidency and its Activities, 1949–1951, 29 Canadian Rev. of Am. Stud. 142 (1999). ↩︎
39. 97 Cong. Rec. 2485–86 (1951). ↩︎
40. Stathis, supra at 70. ↩︎
41. Id. at 70–71. ↩︎
42. 97 Cong. Rec. 2486 (1951). ↩︎
43. 30 Penn. Legis. J. 1597 (1947). ↩︎
44. Stathis, supra at 73. ↩︎
45. Id. ↩︎
46. Id. at 74; 103 Cong. Rec. app. A2686 (1957). ↩︎
47. 103 Cong. Rec. app. A3075 (1957). ↩︎
48. Dwight D. Eisenhower, The President’s News Conference (May 13, 1959), https://perma.cc/P33Q-KS56. ↩︎
49. Associated Press, Reagan Favors Repeal of Ban on Third Term, N.Y. Times (Sept. 15, 1985), at 33. ↩︎
50. Thomas H. Neale, Cong. Rsrch. Serv., R40846, Presidential Terms and Tenure: Perspectives and Proposals for Change 24–26 (2009). ↩︎
51. Dan T. Coenen, Two-Time Presidents and the Vice-Presidency, 56 B.C. L. Rev. 1287 (2015). ↩︎
52. Richard Albert, The Constitutional Politics of Presidential Succession, 39 Hofstra L. Rev. 497, 565–66 (2011). ↩︎
53. Derek T. Muller, Scrutinizing Federal Election Qualifications, 90 Ind. L.J. 559, 570 (2015). ↩︎
54. Peabody & Gant, supra at 620–24. ↩︎