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The 22nd Amendment (in combination with the 12th) is generally taken to mean that a two-term President is not a valid Vice-Presidential candidate. But some scholars (for example, this article) point out a notable difference in wording.

XII:

[N]o person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

XXII:

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.

This interpretation then means that a strict reading would mean that a two-term President cannot be elected back into office, but they could still become VP and then inherit the office.

Are there any records from the drafting of the 22nd which explain why the word "elected" was used instead of "eligible"? It's very plausible that the drafters considered them equivalent, but it's not impossible that the change in wording was deliberately chosen.

NB: I am not asking about the validity of this argument, just trying to find out whether it was a deliberate change of wording or not.

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  • I do not believe that this was intentional. But I can't quickly cite to sources that say so.
    – ohwilleke
    Commented Nov 27 at 20:26
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    I don't think we'll ever know the answer to this question, or the related one you linked to, unless someone attempts it and SCOTUS weighs in. What "scholars" say is just opinions, not the law of the land.
    – Barmar
    Commented Nov 27 at 20:35
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    Unless the drafters of the amendment kept a record of their thought processes, I doubt we can know whether they worded it like this deliberately. I think most people would assume that "eligible" means "eligible to be elected".
    – Barmar
    Commented Nov 27 at 20:38
  • @Barmar But what happens should an ex-President who couldn't be elected again per the 22nd Amendment happen to be Speaker of the House and both the President and Vice President are removed from office by any means before either can be replaced? So, maybe "elected" and "eligible" do differ? (Just ignore the fact that the Speaker of the House isn't an "Officer" of the United States per Art II sec 1 clause 6 and per that shouldn't be third in the succession because "Officers" are appointed by the President per Art II sec 2, clause 2, and that's not a member of the House of Representatives. 🙂)
    – Just Me
    Commented Nov 27 at 22:00
  • There was another recent similar question about the text of those succession clauses.
    – Barmar
    Commented Nov 27 at 22:14

1 Answer 1

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Q: Are there any records from the drafting of the 22nd which explain why the word "elected" was used instead of "eligible"?

TLDR: Both "eligible" and "ineligible" appeared in early versions of the proposed amendment. Senator Warren Magnuson thought the revised text using "elected" would be easier to understand and achieve what was really intended. Others agreed.

A summary description of the change is in: The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment, 1999.

  1. Proposal and Ratification of the Twenty-Second Amendment

H.J.Res.27 as originally introduced used "eligible".

[n]o person shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.

The House Judiciary Committee revised H.J.Res.27 to read.

Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.

Having passed the House, the resolution was sent to the Senate. The Senate Judiciary Committee then modified the language to read.

A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.

Then, on March 10, the Senate considered an amendment offered by Democratic Senator Warren Magnuson that would have replaced the Judiciary Committee's language with the seemingly more straightforward provision that [n]o person shall be elected to the office of President more than twice." Magnuson explained that the language in his proposal, unlike the "complicated legal language" of the Committee version, "could be easily understood by everyone, and... would not involve complicated legal questions," such as "When is a man Acting President? When does he assume the office" and, "to what period he should be limited" when "elevated to the office of President through circumstances beyond his control"? Magnuson argued that his proposal would bypass these questions by focusing on what was "really intended to be reached"- preventing a President from "perpetuat[ing] himself in office."

After further debate, the final language using "elected" was approved.

Senator Magnuson's address to the Senate is in the Congressional Record, March 10, 1947.


Addressing a comment:

During the Federal Convention of 1787, (July 17) the election, length of the term, and eligibility of the Executive (President) were discussed.

On who is to elect the president, the choices were National Legislature (Congress), the people, or "Electors appointed by the several legislatures of the individual states" (Electoral College).

On the length of the term, the choice was seven years, more or less, depending on whether the Executive is "re-eligible".

On "re-eligible", the choice was yes or no.

[Debate on] “For the term of 7 years” resumed

Mr. Broom was for a shorter term since the Executive Magistrate was now to be re-eligible. Had he remained ineligible a 2d. time, he should have preferred a longer term.

It is apparent that "re-eligible" was used as "able to stand again for election".


Citations:

Peabody, Bruce G. and Gant, Scott E., "The Twice and Future President: Constitutional Interstices and the Twenty-Second Amendment" (1999). Minnesota Law Review. 909. https://scholarship.law.umn.edu/mlr/909

The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1911). Vol. 2.
https://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-vol-2

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  • So if the intent was to prevent "perpetuat[ing] himself in office", surely that means that schemes attempting to get around this by focusing on the language were not intended to be allowed.
    – Barmar
    Commented Nov 27 at 23:39
  • But would textualists on SCOTUS agree with that? If I want to be conspiracy-minded, maybe that's what he said to get the amendment through, but he actually created this gaping loophole.
    – Barmar
    Commented Nov 27 at 23:43
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    @Barmar - "Interpreting the legislative intent behind the Twenty-Second Amendment comes with its own special set of problems. First, the debates were typically marked by a failure on the part of members of Congress to identify clearly either the purposes of their amendment proposals or the ways in which they hoped to effectuate the changes they sought. Second--and no doubt related to the first problem--the debates featured a remarkable lack of precision in choosing critical words." Intent?
    – Rick Smith
    Commented Nov 28 at 0:14
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    @Bobson it should be noted that during the drafting of the constitution and of the twelfth amendment, the most common way of saying "able to be elected" was in fact "eligible." See, for example, the debates at the constitutional convention on the question of whether the president should be limited to one term, which were phrased as a question of whether the president would be "re-eligible." The sense of "qualified" also existed at that point, but "able to be elected" was perhaps the primary sense (furthermore, "elected" was still used in the broader sense of "chosen").
    – phoog
    Commented Nov 29 at 13:08
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    Then the phrase "eligible to the office" survived beyond the semantic shift of "eligible" because of the conservatism of legal language and the reuse of archaic phrases ("high crimes and misdemeanors" is another phrase that has suffered from this phenomenon). But note how the preposition is "to" rather than "for," as it normally would be if used in the sense of "qualified." In my estimation, the twelfth amendment means to prohibit people who cannot be elected to the presidency from being elected to the vice presidency, including any future restrictions -- on electability or eligibility.
    – phoog
    Commented Nov 29 at 13:14

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