We Should Take Trump’s Desire to Serve a Third Term Seriously
Why should we expect the Supreme Court to step in and declare Trump ineligible to run in 2028 if the court refuses to enforce a state’s decision to remove him from the ballot under the insurrectionist clause of the 14th Amendment?
If we have learned anything about U.S. President-elect Donald Trump over the past decade, it’s that even his most outlandish threats against democracy should be taken seriously. This applies not only to his promises to exact revenge and retribution on his political opponents and critics, but also to his expressed interest in serving a third term (or more) as president.
Trump has been musing about serving three terms for a long time. In a 2018 fundraiser with donors at Mar-a-Lago, he praised Chinese President XI Jinping for being elected president for life, calling Xi “great,” and suggesting, “Maybe we’ll have to give that a shot someday.” At a campaign rally in Wisconsin in August 2020, he declared: “We are going to win four more years. And then after that, we’ll go for another four years because they spied on my campaign. We should get a redo of four years.”
There is no reason to think Trump’s MAGA base would raise any objections to keeping their dear leader in power.
His latest remarks on the subject were delivered on November 13, when he told a gathering of House Republicans, “I suspect I won’t be running again, unless you say, ‘He’s so good, we’ve got to figure out something else.’”
Although widely characterized as a joke, the third-term talk cannot be dismissed as just another zany part of Trump’s rambling standup schtick that has seen him praising Hannibal Lecter, extolling the size of Arnold Palmer’s penis, and condemning windmills for driving whales crazy. Nor can it be taken for granted, as is commonly done, that the 22nd Amendment would preclude Trump from securing a third stint behind the Resolute Desk.
The 22nd Amendment provides:
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 the president more than once.
By its terms, the amendment prohibits presidents from being elected more than twice. It is silent as to whether a president can legally assume office more than twice by other means.
The distinction is critical because the hardcore reactionaries who dominate the Supreme Court, where any 22nd Amendment challenge involving Trump would wind up, consider themselves to be strict “textualists.” This means that they profess to focus on the plain meaning of the words contained in the Constitution, regardless of the practical consequences. As Supreme Court Justice Amy Coney Barrett put it in her October 2020 Senate confirmation hearing: “I interpret the Constitution as a law and… I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.”
The exact meaning of the 22nd Amendment, however, has been the subject of academic debate since the measure was ratified in 1951. In a 1999 law review article published well before Trump became a reality TV huckster much less a presidential hopeful, legal scholars Bruce Peabody and Scott Gant argued that a twice-elected president would not be prohibited from joining a new electoral ticket as a vice presidential candidate, and if elected, would not be precluded from ascending to the presidency if the head of the ticket subsequently died or resigned.
Given the degeneration of the Republican Party into a cult of personality, it is not at all unthinkable that if Trump is still physically fit in 2028 that he and JD Vance could switch places on the GOP ticket, with the goal of having Vance elected and then stepping down to allow Trump to return to the helm. There is nothing unconstitutional on its face about such a scheme. And there is no reason to think Trump’s MAGA base would raise any objections to keeping their dear leader in power.
A less likely route back to the Oval would be for Trump to be elected speaker of the House, assuming there is a Republican majority in the lower chamber in 2029. The speaker is second in line to the presidency under the Presidential Succession Act of 1947, and does not have to be a member of the chamber. There was considerable chatter in 2023 about Trump running for the speakership, and that talk could easily be revived to facilitate a third Trump term with the proper resignations of newly elected GOP stand-ins as president and vice president.
If both of those scenarios appear beyond reach, Trump could simply declare his candidacy for a third term and defy anyone to stop him. While such a move would be in direct conflict with the 22nd Amendment and would seemingly require the amendment to be repealed in the fashion of the 21st Amendment, which negated the 18th and ended prohibition, some pundits on the radical right are already agitating for “Trump 2028,” contending that the 22nd Amendment is inherently undemocratic and thus ripe for repeal.
But what if Trump, emboldened by a second term, decides to skip the laborious process of amending the Constitution altogether? Writing last February in the online journalLawFare, former associate White House counsel Ian Bassin asked why we should expect the Supreme Court to step in and declare Trump ineligible to run in 2028 if the court refuses to enforce a state’s decision to remove him from the ballot under the insurrectionist clause of the 14th Amendment.
The insurrectionist clause is simple and straightforward, and appears tailor-made for Trump, stipulating that “No person shall … hold any office… under the United States… who, having previously taken an oath… to support the Constitution… shall have engaged in insurrection or rebellion.”
Bassin’s article was published a month before the Supreme Court answered his question with its disastrous and hypocritical ruling inTrump v. Anderson that overturned Colorado’s decision to deny Trump a place on its 2024 presidential ballot. The court held that only Congress could enforce the insurrectionist clause. And even then, the court explained, Congress would have to enact a new statute to authorize the removal of an insurrectionist.
Prior to Anderson, a broad array of constitutional law experts, including liberal Harvard Law professor Laurence Tribe and retired conservative federal judge J. Michael Luttig, had argued that the insurrectionist clause was “self-executing” and required no enabling legislation, but only action by the courts for implementation. The Supreme Court slammed the door on this argument in Anderson, while potentially opening another on the self-executing nature of the 22nd Amendment in a future case.
Even if the Supreme Court were to rule against a Trump third-term bid, what would stop Trump from just ignoring the court’s commands? As Alexander Hamilton wrote long ago in Federalist Paper No. 78, “The judiciary… has no influence over either the sword or the purse… It may truly be said to have neither FORCE nor WILL, but merely judgment.”
Both Andrew Jackson (in a case involving the seizure of Native American lands) and Abraham Lincoln (on habeas corpus) defied the Supreme Court. Trump would no doubt love to outdo them both.
