Donald K. Sherman, Sacha Heymann, and Debra Perlin (Citizens for Responsibility and Ethics in Washington) have posted The Ironclad Twenty-Second Amendment (115 Ky. L.J. ___ (forthcoming 2027)) on SSRN. Here is the abstract:
The Twenty-Second Amendment provides that “[n]o person shall be elected to the office of the President more than twice.” Although this prohibition on unlimited presidential tenure has traditionally been widely accepted in popular culture, in public discourse and by senior government leaders including prior presidents, it has received renewed interest and attention as allies of President Trump openly suggest that he should seek a third term, with some commentators suggesting that President Trump could bypass the Twenty-Second Amendment altogether, including by running as vice president and then assuming the presidency through the line of succession.
This article rejects this extreme minority view by reviewing the congressional debates surrounding the passage of the Twenty-Second Amendment in both the United States House of Representatives and the United States Senate. It proceeds in three parts. First, it provides a descriptive account of the amendment’s passage during the 80th Congress and identifies and discusses the differences between various proposed versions of the amendment. Then, it analyzes the substantive arguments made by supporters in favor of term limits and by opponents against them. In so doing, the article concludes that congressional supporters of term limits were overwhelmingly motivated by the four-term presidency of Franklin Roosevelt and the rise of dictatorship in Europe prior to World War II and therefore primarily situated term limits as a bulwark against authoritarianism and prolonged concentration of executive power in the United States. Lastly, the article uses an analysis of the Twenty-Second Amendment’s Transition Clause, other provisions in the Constitution, and the congressional debates over the amendment to reject the idea that the amendment’s textual change from “hold” in earlier drafts to “elected” in the final version somehow meant or permits a term limited former president to return to office through non-elective means. Taken together, the article demonstrates that the available evidence about the congressional debates leading to the Twenty-Second Amendment’s passage points to the conclusion that it is, indeed, ironclad.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum