What happens if a current or former US president attempts to stand for a third term

Question

The 22nd Amendment to the US Constitution states that:

No person shall be elected to the office of the President more than twice

There are currently four living former Presidents who have been elected twice and could therefore attempt to breach this limit (Bill Clinton, George W. Bush, Barack Obama and Donald Trump). What would happen if they attempted to do this, in terms of stopping them and punishing them?

Would they be stopped:

1. When they stand for election as their party's nominee in an open primary.
2. When they are chosen as their party's nominee.
3. When they apply to appear on the ballot paper.
4. When they are elected.

The amendment seems to only bar election, rather than standing for election, and a candidate could fail at any point before the last one (e.g. if they lose the electoral college vote).

Also, if someone does attempt a third term and ends up being prevented, is there any punishment for attempting to break a constitutional term-limit?

I don't think anyone has ever attempted this for the Presidential election, so there may be no direct precedent, but are there examples of other term-limited offices where someone has attempted to ignore the limits (successfully or not) which would give an indication of what might happen?

Just to be clear, I'm not asking how someone could get around the term-limit (there are plenty of questions discussing this), but what would happen in terms of process and punishment if they attempted to stand for election for a third time.

Answer 1

As far as I can tell, it is not a crime to run for any elected office in the US as an unqualified candidate. That said, there are a huge number of roadblocks that prevent unqualified candidates from being elected and then taking office.

Roadblock #1: Getting on the ballot.
It is up to election officials (typically headed by a state's Secretary of State) to keep unqualified candidates off the ballot. If a candidate is not qualified (and that includes running as a third term president), said candidate should not be appearing on the ballot. Some states even require potential write-in candidates to be qualified.

Roadblock #2: Ballot counters.
Assuming the election officials did their job, the official ballot counters don't need to worry about excluding votes for unqualified candidates. In states that don't certify who is/is not qualified to run for an office as a write-in candidate, they might have to toss write-in votes for, example, Mickey Mouse (a favorite write-in, where allowed).

Roadblock #3: The Electoral College.
The Electors swear an oath to the US Constitution, which includes the 22nd Amendment. In some states it has even been made a crime to be a Faithless Elector. That sets up a quandary if the winning candidate in some state passes the first two roadblocks but is indeed unqualified. Said electors are caught between a rock and a hard place. They might be violating state law by being faithless and voting against the elected unqualified candidate, but they might be violating state law by violating the US Constitution.

Roadblock #4: The US Congress.
The US Congress meets in a joint session on January 6 to certify the presidential election results. One of the things they are supposed to do is to certify that the winning candidates from each state are qualified to be president.Constitution.

Roadblock #5: The US Supreme Court.
Suppose that somehow an unqualified presidential candidate did make it past all of the previously mentioned roadblocks and has been elected. Everyone who opposes this election will qualify as an aggrieved party; their appeals will quickly make their way to the Supreme Court. The Court's number one job is to ensure the Constitution is obeyed.

Anti-roadblock #1: Side-skirt the 22nd Amendment.
There is one path to being a third term president that does not require being elected three times. This would be a reenactment of Woodrow Wilson's bizarre scheme in 1916 should Wilson have not been elected to a second term. (He was narrowly reelected in the Electoral College so Wilson's bizarre scheme was never put into play.) The issue at hand back then was the very long lame duck session between the November election and the March 4 presidential transition. In case Wilson's opponent had won the election, the plan was to appoint Charles Evans Hughes (Wilson's opponent) as US Secretary of State (second in line back then) and then Wilson and Marshall resigning. The modern equivalent would be for Mike Johnson (or whoever is speaker in 2028) to resign as Speaker of the House, the House electing Donald Trump as Speaker, and then Trump and Vance resigning. That's not going to happen.

Anti-roadblock #2: Repeal the 22nd Amendment.
If this gets done in time, easy-peasy; there's no longer a bar on becoming a third term President. This has come up before, almost every time the US has had a two term President since FDR. However, none of those repeal proposals had any legs.

Anti-roadblock #3: Repeal and replace the entire Constitution.
This, too, is a highly unlikely proposition. However, it has happened in other countries, so while highly unlikely, it is possible.

Answer 2

The amendment seems to only bar election, rather than standing for election

Most election laws allow only candidates who are qualified to be elected and assume office. If the constitution says that Alice can't be president, then most states' laws won't allow her to be on the primary ballot, much less the general election. The secretaries of state (or election boards or whatever authority) of the several states would most likely reject any petition to put such a candidate on the ballot, with the details depending on the particulars of each state's election law.

That said, I looked for an example in New York law, and found that the matter is somewhat complicated by the electoral college. I found a provision requiring candidates for "public office" to be eligible for the office, but also to be citizens of the State of New York, so this provision presumably doesn't apply to the presidency. I found no similar provision for the presidency. Perhaps the state is implicitly relying on the political parties not to nominate ineligible candidates, or perhaps I just didn't look hard enough.

This is basically what happened in Colorado for the 2024 election, only the Supreme Court ruled that a state government has insufficient authority to disqualify someone on 14th-amendment grounds in the absence of a federally imposed 14th-amendment disability. That doesn't prevent a state from enforcing a federally imposed 14th-amendment disability nor indeed from enforcing other constitutional qualifications such as the 22nd amendment limitation.

if someone does attempt a third term and ends up being prevented, is there any punishment for attempting to break a constitutional term-limit?

Probably not, unless there was some sort of fraud or similar misdeed. But that seems rather unlikely in this case. It's not inconcevable that a state could enact a civil or criminal penalty for seeking an office for which one is unqualified, but there doesn't seem to be much benefit to it, at least not enough benefit to outweigh the costs: the possibility of abuse toward political enemies, for example.

Answer 3

It depends on the method they try to use.

A viable strategy would be:

• while staying at least somewhat popular, or at least being portrayed as such by the media...
• take strong personal control over the law enforcement hierarchy at both federal and many state level
• do so in the election administration as well
• defund, de-staff and demoralize the army
• otherwise dismantle or disable the present checks and balances
• diecredit the opposition to a great extent, e.g. by controlled media
• grab more legislative power in the next legislative election cycles
• some other things (I am not expert at any rate)

... then they will be in a position to alter the legal framework or at least the status quo of the presidency as they see fit.

Pretty much a working recipe with a lot of success stories all over the world.

Answer 4

If the candidate is one of 2 major parties (D/R), they both have this nifty thing called a Convention which chooses who the next nominee of their party is.

So, before the 3rd time candidate gets on federal ballots, they need to FIRST, manage to convince the voters at the Convention to vote for someone who is guaranteed to lose the party this election (as in, would be thrown off the ballot and cause the party to lose this cycle as a result).

DNC has superdelegates whose job it is to do just that. RNC doesn't have a formal mechanism, but they still have the votes.

Actually, even before Conventions, the 3rd party candidate needs to win Primaries/Caucuses. And the FIRST roadblock is there - the state party may not allow in-eligible candidate into their primary, in the first place. A Party is a private organization, governed only by its own internal rules, so they can pretty well do as they please and not admit the 3rd-time candidate at will. They may suffer political capital in doing so if the candidate is popular with the base... so this isn't a guarantee.

Answer 5

(This is a fixed version of another answer, with inaccuracies corrected. Fixes are sourced and in italics. For some reason fixing the original answer was not accepted.)

As far as I can tell, it is not a crime to run for any elected office in the US as an unqualified candidate. That said, there are a huge number of roadblocks that prevent unqualified candidates from being elected and then taking office.

Roadblock #1: Getting on the ballot.
It is up to election officials (typically headed by a state's Secretary of State) to keep unqualified candidates off the ballot. If a candidate is not qualified (and that includes running as a third term president), said candidate should not be appearing on the ballot. Some states even require potential write-in candidates to be qualified.

Roadblock #2: Ballot counters.
Assuming the election officials did their job, the official ballot counters don't need to worry about excluding votes for unqualified candidates. In states that don't certify who is/is not qualified to run for an office as a write-in candidate, they might have to toss write-in votes for, example, Mickey Mouse (a favorite write-in, where allowed).

Roadblock #3: The Electoral College.
The Electors swear an oath to the US Constitution, which includes the 22nd Amendment. In some states it has even been made a crime to be a Faithless Elector. That sets up a quandary if the winning candidate in some state passes the first two roadblocks but is indeed unqualified. Said electors are caught between a rock and a hard place. They might be violating state law by being faithless and voting against the elected unqualified candidate, but they might be violating state law by violating the US Constitution.

Non-roadblock: The US Congress.
The US Congress meets in a joint session on January 6 to certify the presidential election results. However, 3 USC 15 (d)(2)(B)(ii) clearly specifies what grounds are valid in order to reject electoral votes, and the qualification of a presidential candidate is not one of them.

Roadblock #4: The courts.
Suppose that somehow an unqualified presidential candidate did make it past all of the previously mentioned roadblocks and has been elected. Everyone who opposes this election will likely qualify as an aggrieved party in order to contest any of the "president"'s actions in court. In the US, all courts have the power and duty to apply the constitution.

Possible anti-roadblock: Side-skirt the 22nd Amendment.
This would try enacting Woodrow Wilson's bizarre scheme in 1916 should Wilson have not been elected to a second term. (He was narrowly reelected in the Electoral College so the scheme was never put into play.) The issue at hand back then was the very long lame duck session between the November election and the March 4 presidential transition. In case Wilson's opponent had won the election, the plan was to appoint Charles Evans Hughes (Wilson's opponent) as US Secretary of State (second in line back then) and then Wilson and Marshall resigning for Hughes to become acting president until becoming the actual president on March 4th. The modern equivalent would be for Mike Johnson (or whoever is speaker in 2028) to resign as Speaker of the House, the House electing Donald Trump as Speaker, and then Trump and Vance resigning.

The validity of such a scheme is not certain, because holding an office that is part of the presidential line of succession does not override the constitutional requirements for being president: age, US citizenship at birth, not having done more than 1 and a half terms already, and so on. In fact, during the Trump and Obama administrations, there have been several examples : for instance, Elaine Chao, Secretary of Transportations under Trump (also known for being Mitch McConnell's wife) was born in Taiwan and excluded from the line of succession during her tenure. In the scheme described above, if Trump as Speaker of the House does not qualify to be acting president, as specified in 3 USC 19 (b), that duty would fall upon the next person in line, presumably the president pro tempore of the Senate.

However, it is not clear whether having completed 2 terms (or one and one half...) constitutes a bar for being president or acting president, because the wording of the 22nd Amendment specifically bars someone from being "elected" president more than twice. As opposed to the other qualifications of ArtII.S1.C5.1 which mention "be eligible to the Office of President", and the wording of the 14th amendment which mentions "hold any office [] under the United States". Depending on the judge and the court, it may or may not hold.

Anti-roadblock #2: Repeal the 22nd Amendment.
If this gets done in time, easy-peasy; there's no longer a bar on becoming a third term President. This has come up before, almost every time the US has had a two term President since FDR. However, none of those repeal proposals had any legs.

Anti-roadblock #3: Repeal and replace the entire Constitution.
This, too, is a highly unlikely proposition. However, it has happened in other countries, so while highly unlikely, it is possible.