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In light of the incumbent president seeming to seriously consider seeking a third term, it was recently asked how that could be legal; the top answer responds that the incumbent "cannot be elected to a third term" according to the 22nd amendment.

Similar language, however, exists in Section 3 of the 14th amendment:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The clause requiring a two-thirds majority of each house of Congress to lift the restriction seems to be even stronger indication that the requirement was meant to be self-executing than exists anywhere in the 22nd Amendment. Despite this, the Supreme Court ruled in Trump v Anderson that neither states nor federal courts could enforce Section 3 absent additional legislation from Congress, so a hypothetical oath-breaking insurrectionist could in fact be legally elected to an office under the United States.

This brings me to my questions:

  • Is there any legislation that executes the 22nd Amendment?
  • If not, why would the 22nd Amendment be self-executing when Section 3 of the 14th Amendment isn't?
  • If so---and supposing Congress does not act on this issue before 2028---when in the elections process could the 22nd Amendment be enforced?
waltmck
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2 Answers2

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The four-justice concurrence said:

other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. See, e.g., Art. II, §1, cl. 5 (Presidential Qualifications); Amdt. 22 (Presidential Term Limits). Nor does the majority suggest otherwise.

The majority did not disagree.

And see the following exchange from oral argument with counsel for Donald Trump.

Sonia Sotomayor: Are you setting up so that if some president runs for a third term, that a state can't disqualify him from the ballot?

Jonathan F. Mitchell: Of course, a state can disqualify him from the ballot because that is a qualification that is categorical.

It's not defeasible by Congress.

Jen
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There is a vast difference in how the two are both determined and executed.

Section 3 basically leaves that to Congress, they could decide BOTH that you had committed insurrection AND were to be allowed on the ballot despite that, you could in fact spend years behind bars for insurrection and STILL be elected president. Totally legal, at the discretion of Congress.

On the other hand, the 22nd, like the age limit from Article II, Section 1, Clause 5, is not conditional, congress does not get to vote on whether someone has been elected twice or whether someone has had their 35 birthday, and they don’t get to vote on whether someone can be elected despite being too young or previous elections. Even if someone’s age was unclear, say an orphan born between the 15th and 25th of January, Congress would have no say in the matter. No discretion, Congress cannot vote and decide that someone that has never been elected has previously been elected twice, and they also can’t vote and decide that someone that has been elected twice has never been elected. Just as they can’t vote that someone that is 18 is old enough.

jmoreno
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