The Case for the Third Term: Why the 22nd Amendment Doesn't Mean What You Think It Means
By Americans for Voter Choice
The idea that a twice-elected president is forever barred from the Oval Office is one of the most ingrained, yet least examined, assumptions in American politics. It is treated as a self-evident truth. But this common understanding is a work of constitutional folk law, not rigorous legal analysis, and it collapses under the combined weight of the amendment's own text, its legislative history, binding Supreme Court precedent, and the entire framework of American legal tradition.
The path for Donald Trump, or any twice-elected president, to run for a non-consecutive third term is not a secret loophole; it is the original design of the law. The case is not merely persuasive; it is overwhelming.
Main text of the Twenty-Second Amendment:
"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."
The most powerful textualist case is found within the architecture of the above text, and it directly refutes the common assumption that the amendment creates a lifetime ban. The public misconception that a twice-elected president is forever ineligible stems from a seemingly straightforward reading of the first clause: "No person shall be elected to the office of the President more than twice." Many see "the office of the President" and assume it means the singular, continuous position or job of President. However, this common-sense reading is invalidated when confronted with the amendment's own internal logic. The framers of the amendment demonstrated that they knew how to write a broader limit based on time served, and they deliberately chose not to apply it to twice-elected presidents.
The amendment establishes two distinct term limits using two starkly different standards. For a president who wins office through an election, the rule is narrow and specific: "No person shall be elected to the office of the President more than twice." However, for a Vice President who succeeds to the Presidency, the amendment deploys a much broader standard. The limit applies to any person who has "held the office of President, or acted as President, for more than two years" of another's term.
This is not an accident; it is a masterclass in deliberate legal drafting. They demonstrated that they knew exactly how to write a limit based on the experience of holding or acting in the office. Their choice to use that broad language for a successor, but the narrow "elected to" language for the primary limit, invokes a foundational principle of legal interpretation: expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another. By explicitly using the "held the office" standard in one clause, the framers intentionally excluded it from the other. The prohibition on a twice-elected president is therefore not a lifetime disqualification based on total time served in the position; it is a specific bar against being elected a third time to a continuous office. The text itself proves that the framers saw a fundamental difference between being "elected to" an office and having "held" it, and they built the amendment around that very distinction.
The language of the 22nd Amendment is clear: "No person shall be elected to the office of the President more than twice." To believe that serving two non-consecutive terms equals a lifetime ban requires one to ignore this specific wording and substitute the word "elected" with "serve" or "hold." The amendment restricts the event of being elected, not the cumulative time a person can hold the office over their entire life. If the amendment had intended the lifetime, they would have written it to forbid a person from "holding the office" or "serving" for more than two terms. The fact they chose the word "elected" is the central distinction.
This isn't just a textual game. The Supreme Court has built a powerful and binding framework around this very issue. In landmark cases like Powell v. McCormack (1969) and U.S. Term Limits, Inc. v. Thornton (1995), the Court established a core doctrine: the qualifications for federal office laid out in the Constitution (age, citizenship, residency) are a fixed and exclusive ceiling. They cannot be added to by statute or, crucially, by implication. To read a lifetime ban into the 22nd Amendment would be to create a massive, implied disqualification where none is explicitly written; a direct violation of the Supreme Court's foundational principle that any limit on the people's right to choose their representatives must be unambiguous.
This textual distinction between a specific "office" and the general "position" of the Presidency is not a mere legal theory. It is reinforced by the United States government's own official precedent. This isn't a creative legal theory; it is the concrete, established practice of how our government defines and separates its chief executives. Grover Cleveland served from 1885-1889, lost reelection, and then won again to serve from 1893-1897. We do not call him "the 22nd President who served twice." We call him the 22nd President AND the 24th President. This is a formal legal distinction, not a historical curiosity.
This numbering reflects a foundational principle: a Presidency is defined by continuous service. Had Cleveland won reelection, he would have been serving a second term of the 22nd Presidency. But because Benjamin Harrison's term as the 23rd President broke that continuity, Cleveland's return initiated a new, legally distinct office: the 24th Presidency. The government itself recognized that the office of the 22nd Presidency and the office of the 24th Presidency were not the same.
Now, apply this exact, non-controversial principle to Donald Trump. He was the 45th President (2017-2021). After his 2024 victory, he is the 47th President (2025-2029). Just as with Cleveland, these are two different numbers because they are two different presidential offices. The 45th Presidency is a legally separate office from the 47th Presidency.
The 22nd Amendment states, "No person shall be elected to the office of the President more than twice." Note again that it says 'the office' rather than 'the position' of the President. The crucial question is, which office? The argument that Trump is ineligible rests on the false premise that the office of the 45th Presidency and the office of the 47th Presidency are the same. They are not. They are only the same office if service is continuous.
Trump was elected once to the office of the 45th Presidency. He has now been elected once to the office of the 47th Presidency. He is currently serving the first term of this new, distinct office. He has not been elected "twice" to any single presidential office; he has been elected once to two different offices. The two-term limit applies to each Presidency, and because there are two distinct Presidencies here, the limit will not be violated if Trump were to run for a second term in his 47th Presidency. His Presidency today represents a new Presidency, not a continuation of one with its rules of re-election and succession. To argue otherwise is to claim the government's own official numbering system is meaningless; a claim that falls apart when you realize each Presidency is a distinct legal entity with its own cabinet, executive orders, and judicial appointments.
If that evidence isn't compelling enough, consider the legislative smoking gun. The history of the 22nd Amendment's passage in 1947 provides a dispositive fact: Congress considered and explicitly rejected language that would have imposed a clear lifetime ban. As documented by the Congressional Research Service, the original joint resolution that became the 22nd Amendment (H.J. Res. 27), as well as the version reported by the House Judiciary Committee, contained language that was far more restrictive than what was ultimately ratified. According to the committee's own report the proposed text, referenced in H.R. Rep. No. 17, 80th Cong., 1st Sess. at 1 (1947), it 'would have made the covered category of former presidents "ineligible to hold the office of President."'
This is the crucial point: the language creating a permanent status of "ineligible to hold the office of President" was deliberately removed from the amendment and replaced with the current, more precise text focused on the act of being "elected to the office... more than twice." This sequence of events is a fundamental guide to constitutional interpretation. The legislature was presented with a clear choice: a version that created a permanent ineligibility to hold the office (a lifetime ban) versus a version that limited the number of times one could be elected to it. They made a conscious and recorded choice to abandon the former and adopt the latter. The logical conclusion is that the legislature did not want the legal effect of the rejected language. They had the opportunity to enact an explicit, unmistakable lifetime ban and deliberately chose not to. Therefore, one cannot interpret the adopted language as having the same meaning as the rejected language. Its rejection is the cornerstone of the argument that the 22nd Amendment's framers considered and purposefully decided against creating an absolute lifetime ban.
The most important part of this story is not that more absolute language was proposed at various stages, but that it was rejected in the lawmaking process. The House and the Senate had opportunities both in committee and on the floor to adopt formulas that would have clearly imposed permanent, post-service ineligibility; instead they reviewed and approved the language that bars being elected to an office more than twice. That choice, the adoption of election-limiting language instead of an outright disqualification to hold the office, is the legislative smoking-gun that scholars point to when assessing congressional intent.
This is not a matter of interpretation; it is historical fact. When a legislature considers and rejects specific, restrictive language, it is the strongest possible evidence that it did not intend for the final law to have that rejected meaning. The framers were presented with the option of a lifetime ban, and they chose not to enact it. They knew how to write an absolute prohibition, and they deliberately refrained.
We know they knew how because they've instituted lifetime bans elsewhere. Look at the statute governing the Comptroller General: "The term of the Comptroller General is 15 years. The Comptroller General may not be reappointed." The word "reappointed" is an absolute bar. The 14th Amendment, in barring insurrectionists, uses absolute language, stating they cannot "hold any office." The 22nd Amendment contains no such definitive language. It doesn't say "shall never again be eligible" or "shall not hold the office more than twice." It limits the act of being "elected to the office... more than twice," a construction that, under established practice, refers to a specific tenure.
The evidence continues to mount when you look at how term limits actually function everywhere else in American law. This is not theoretical. It is current practice.
Federal Agencies: FCC Commissioners, Federal Reserve Board Governors, and FTC Commissioners all serve term-limited appointments. Yet, the federal government consistently permits them to return and serve again after a break in service. The FCC Commissioners serve a five year term, yet Rosel Hyde was an FCC Commissioner from 1946-1953, left, and returned to serve again from 1957-1969. This is the United States government interpreting term limits for its own offices. The interpretation is unambiguous: a non-consecutive term is a new appointment, and the limit resets.
State Governments: The pattern is overwhelming. Virginia's constitution limits governors to a single term, the strictest limit possible. Yet Mills Godwin served as governor from 1966-1970, took a break, and was elected again to serve from 1974-1978. Louisiana's constitution has a two-term limit, yet Edwin Edwards served four terms as governor non-consecutively. In North Carolina, with a two-term limit, Jim Hunt served four non-consecutive terms. While the specific wording of these state constitutions differs from the 22nd Amendment, they reveal a consistent theme in the American political tradition: term limits are understood as a tool to prevent continuous rule, not to permanently exile experienced leaders from public service. To argue the Presidency is a unique exception is to defy this universal American practice.
This brings us to the core purpose of the 22nd Amendment. It was a cure for a specific disease: incumbent entrenchment. The framers were reacting to Franklin D. Roosevelt's four consecutive terms and the unprecedented power he amassed through twelve uninterrupted years of controlling the machinery of government. An incumbent president commands the Justice Department, the military, the media, and the entire federal bureaucracy. That is the power term limits are designed to check.
A former president, by contrast, is a private citizen. They are a challenger, not a ruler. They must build a political coalition from scratch, without the advantages of incumbency. The amendment was designed to force the powerful back into the status of the powerless, not to permanently ban them from ever seeking the people's consent again. The return of a former president is the ultimate exercise in democratic accountability, allowing voters to directly compare their record against their successor's.
Every single piece of evidence points in the same direction. The specific wording of the amendment. The government's own presidential numbering system. The legislative history showing a lifetime ban was rejected. The plain text of the amendment compared to other, absolute bans. The Supreme Court's doctrine on eligibility. The uniform practice in every other corner of federal and state government. And the fundamental logic of what term limits are meant to prevent.
To believe in a lifetime ban, you must believe the framers ignored the Cleveland precedent, secretly intended the very lifetime ban they explicitly rejected, violated core constitutional principles the Supreme Court would later affirm, and created a rule for the Presidency that is the opposite of every other term limit in American law.
The truth is far simpler and more legally sound. The 22nd Amendment is a masterfully crafted check on consecutive power, designed to prevent a president from becoming a king. It was never intended to be a permanent lock on the door of the Oval Office, barring a private citizen from once again asking for the people's vote. The path for a third, non-consecutive term is not a loophole. It is the law.
——