The 22nd Amendment at age 75: is it seriously under challenge?

Feb. 27 marks the 75th anniversary of the 22nd Amendment to the Constitution, when Minnesota’s ratification gave the three-quarters of the 48 states required by Article V. Now it is back in the public consciousness as President Trump’s supporters take aim at its limitations.

The intention is straightforward: “No person shall be elected to the office of the President more than twice.” Furthermore, “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.”

This wasn’t theoretical. Harry Truman had been elected as Franklin Roosevelt’s vice president in 1944, but had only served 82 days when Roosevelt died in April 1945. That gave him virtually all of Roosevelt’s fourth four-year term.

Presidential tenure became a campaign issue in the 1946 midterm elections: Republicans gained 55 seats in the House and 12 in the Senate to take control of Congress for the first time since 1932.

Everything led back to Roosevelt. In 1940, he was approaching the end of his second term. George Washington had chosen to step down after eight years as president, and his model had become a moral and constitutional, if unofficial, exemplar.

Ulysses S. Grant came close to winning the Republican nomination for a third time in 1880; incredibly, despite a paralyzing stroke in 1919, Woodrow Wilson considered seeking a third term in 1920 and even entertained the idea of a comeback in 1924. But no-one had got as far as the ballot.

FDR’s third term was recognized as exceptional: the storm clouds of war were gathering and the Democrats played safe, Roosevelt winning 38 states.

1944 was different. Roosevelt was only 62 but he was suffering from congestive heart failure and hypertension. The president was dying, so nominating a vice presidential candidate was almost certainly choosing the 33rd president of the U.S.

The incumbent vice president, Henry Wallace, was a cerebral agriculturalist who opposed segregation. He was unacceptably liberal for Democrat bosses, so he was replaced at the party’s convention with Missouri Sen. Harry S. Truman, whom Roosevelt barely knew.

The pair won in November 1944, but Roosevelt was already fading by then. He and Truman met alone only twice as President and Vice President before Roosevelt had a massive stroke and died on April 12, 1945. Four months earlier, Truman had been a middleweight senator of only 10 years’ standing. Now he was president.

A joint resolution stipulating presidential term limits was introduced on the first day of the 80th Congress in 1947. Agreed on March 21 by Republicans and enough Democrats to matter, the text was sent to the states for ratification.

It would not be a swift process. Although Maine and Michigan ratified the amendment on March 31, 1947, it would take three years and 343 days before the Minnesota Legislature’s decision passed the Article V threshold — then a record length of time.

The 22nd Amendment has rarely been a source of deep controversy. President Ronald Reagan retained approval ratings generally above 50 percent right to the end of his presidency, and came to think the amendment was “a mistake”; but he was 77 by the end of his second term and his health was declining.

President Bill Clinton was more grudging, telling Rolling Stone in 2000, “Oh, I probably would have run again.” Asked if he thought he would have won, he replied “Yes I do. But it’s hard to say, because it’s entirely academic.”

Trump has publicly toyed with the idea that his tenure might not have to end in 2029. He markets “Trump 2028” baseball caps, and constitutional and criminal lawyer Alan Dershowitz has argued that “it’s not clear if a president can become a third term president and it’s not clear if it’s permissible.” Trump himself clearly relishes the horror and outrage the suggestion inspires in his opponents.

How could its provisions be overcome? Some point to its prohibition against being “elected to the office of the President more than twice,” arguing that Trump could succeed to the presidency by becoming the running-mate of a puppet candidate who would resign after being inaugurated. More improbable still, Trump might somehow become Speaker of the House of Representatives — second in the order of succession — and thence climb back to the White House by succeeding or somehow being deemed “acting as president.”

It would take a vivid imagination to suppose the authors of the 22nd Amendment meant anything other than a simple two-term limit. There is no reason to think the word “elected” was chosen as a loophole for a future would-be autocrat to exploit, as both originalists and textualists would surely have to agree. Only a strict constructionist might find a coherent path through.

It is impossible to predict what Trump will do when the primaries for 2028 draw near, for the simple reason that, as I have said before, he himself does not know what he will do next. An attempt to defy the 22nd Amendment would ultimately be adjudicated by the Supreme Court. Six of its members, including Chief Justice John Roberts, were nominated by Republican presidents, three by Trump himself.

The court’s recent decisions in cases like Trump v. United States and Noem v. Vasquez Perdomo have indicated sympathy with the administration’s maximalist interpretation of executive power, although its recent ruling against tariffs in Learning Resources, Inc. v. Trump ameliorated that. But to contort the prima facie meaning of an amendment so overtly?

The 22nd Amendment has stood strong and firm for 75 years — but for how much longer?

Eliot Wilson is a freelance writer on politics and international affairs and the co-founder of Pivot Point Group. He was senior official in the U.K. House of Commons from 2005 to 2016, including serving as a clerk of the Defence Committee and secretary of the U.K. delegation to the NATO Parliamentary Assembly.

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