American Presidents are plainly meant to be term-limited. The Twenty-Second Amendment, ratified in 1951, spells it out: “No person shall be elected to the office of the President more than twice.”
Donald Trump has sometimes sung a different tune, though. In March, he told NBC News that “there are methods” by which he could continue serving past the end of his term, and that he was “not joking.” Riffing on this, the Trump Organization’s website began selling “Trump 2028” paraphernalia. More recently, the former Trump aide Steve Bannon told The Economist that Trump is going to stay in office, and that “there is a plan” for Trump to sidestep term limits, which would be revealed “at the appropriate time.”
Whether Trump is serious (as opposed to just trolling the opposition and staving off lame-duck talk), the uncertainty he has created presents an opportunity to shut down this possibility once and for all. The issue here is not about Trump per se—or Barack Obama, for that matter—but rather about shoring up presidential term limits as a meaningful provision of the U.S. Constitution.
These questions are legal ones, but the best solutions are political. If an actual case ever arises, courts may struggle to resolve the matter without causing massive political unrest. Far better to avoid an actual case in the first place. When a president starts talking about constitutional loopholes and third terms, leaders in his party need to push back, with firm and specific support for a strong reading of the Twenty-Second Amendment.
Those who seek to work around the Twenty-Second Amendment rely on a particular reading of its text. Specifically, they say that the amendment bans being elected more than twice, not serving more than twice. That would mean a two-termer could return to office through succession rather than election—if, say, they’re vice president when a future president resigns. Trump has conceded that he cannot run for a third term directly, but he endorsed the succession interpretation when he was asked about it last week, saying at first that he would “be allowed to do that” before, mercifully, going on to say that it was “too cute” and “wouldn’t be right.”
By any measure, the whole point of the Twenty-Second Amendment was to retire two-termers—not just to keep them off the ballot. There is no indication that anyone in Congress or the ratifying state legislatures thought there was a loophole, let alone that they wanted one. It would be an absurd inversion of the term-limit amendment’s purpose to parse its text to allow presidents to stay in power forever, so long as they come in through some sort of back door rather than via election.
That said, some judges or justices could instead focus on the Constitution’s plain text, the drafters’ clear intentions be damned. Such a judge might note that the amendment’s drafters could have used more expansive language. Notably, an earlier draft did just that; the Senate Judiciary Committee’s version said that two-termers “shall not be eligible to hold the office of President, or to act as President, for any part of another term.” But the Senate voted to change that language to the “elected” version. A fervently textualist judge might argue that the amendment says what it says, and it doesn’t say what it doesn’t say, so it bars election but not succession.
Some may argue that a clause in the Twelfth Amendment—“no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”—should prevent the succession scheme. When the amendment was ratified, in 1804, being “eligible” for the vice presidency and being “electable” were synonymous, a fact that would matter to the many textualist judges who focus on words’ meanings at the time they were written. But loophole advocates would say again that the Twenty-Second Amendment allows two-termers to become president through succession, and thus that two-termers are “eligible to the office” of both president and vice president.
Even if two-termers cannot be elected vice president, there are other ways to succeed into the presidency. If the elected vice president resigns, the two-termer could be appointed vice president under Section 2 of the Twenty-Fifth Amendment, ready to step in when the president resigns. If both the president and vice president are set to resign, the two-termer could be chosen as speaker of the House, next in the line of succession.
A more ominous plot would exploit Section 3 of the Twentieth Amendment. That section authorizes Congress to legislate a succession plan for a scenario in which a new presidential term begins but no one is available to take the oath as president or vice president. This could happen if both members of the winning ticket died, bowed out, were disabled, or were disqualified before being sworn in. It could also happen if there were no winning ticket at all because the election results were unresolved. Congress has legislated that the speaker of the House becomes acting president if there is a double vacancy on Inauguration Day, but Congress could designate the outgoing president to remain president instead.
This would be a terrible idea. It would provide perverse incentives to a two-termer who wanted to stay in office forever—he would just have to make something bad happen to the election or to its winners. An outgoing congressional majority and president, questioning the results of an election that hands the White House to their adversaries, could hold up or deny the results, and could change the line of succession to allow the incumbent president to stay in power in the meantime. Because the president would be staying on without being elected, they would wave off the Twenty-Second Amendment, ignoring its intent.
These are the sorts of dastardly maneuvers that our leaders—particularly those in the president’s party who might otherwise support him—need to rule out. Speaker of the House Mike Johnson made a good start when he said on Tuesday that the Twenty-Second Amendment prevents a third term. In March, Senate Majority Leader John Thune said something similar.
While helpful and welcome, these statements need to be stronger and more specific. Both Johnson’s and Thune’s statements could be construed as ruling out a direct run only, not the succession loophole. Given the way that Trump talks about the issue—saying he could legally avoid the Twenty-Second Amendment, even if he sometimes hedges or backtracks—it would be helpful for Republican leaders to take a more explicit stand against such an interpretation.
Endorsing a strict two-term restriction should not be hard. Polling data show that Americans strongly endorse this limit. An April poll found that in light of the constitutional restraints, 82 percent of Americans (including 62 percent of Republicans) would not support a third Trump term. Going even further, Republican leaders should call for any arguable ambiguity in the amendment to be resolved. Americans would support this, and doing so would strengthen the republic.
What would a fix look like? A new constitutional amendment would be the most airtight method. That said, there has never been a successful amendment devoted to a minor semantic reinforcement like this, and it is impossible to amend the Constitution without very broad bipartisan consensus.
Another option would be for Congress to legislate the anti-loophole interpretation. The presidential-succession statute requires that people in the line of succession beyond the vice president must be “eligible to the office of president.” Congress could amend the statute to make it more specific, saying that eligibility is about the Constitution’s age, citizenship, residency, and loyalty requirements, and also about the Twenty-Second Amendment.
If a two-termer tried to run for vice president and the eligibility question ended up in court, this new succession statute would not settle the question, but it would send a powerful message about Congress’s understanding of these constitutional requirements. Moreover, to the extent that the courts left the eligibility question to Congress to resolve when its joint session counts electoral votes every four years on January 6, the statute would send a powerful message to those proceedings, too.
The people are the ultimate enforcers here. The more decisively political leaders from both parties reject the loophole interpretation, the less public support any two-termer would get for any constitutional shenanigans, and the higher the political cost would be to those who would aid and abet them. Such action is a worthy pursuit for a republic that hopes to endure.
The post A Third Term Is a Legal Problem With a Political Solution appeared first on The Atlantic.
