» A third Trump term? End runs around limits are possible, experts say : NPR

President Trump has once again floated the idea of testing the Constitution’s presidential term limits by seeking a third term, as his administration continues to challenge constitutional provisions and push an expansive view of executive power.

After telling NBC News that he’s “not joking” about the possibility and that there are “methods” that would allow him to serve a third time, Trump declined to confirm to reporters aboard Air Force One on Sunday that he’s planning to leave the White House after his second term ends on Jan. 20, 2029.

The 22nd Amendment prohibits a person from being elected U.S. president more than twice. The states ratified the restriction in 1951 in the wake of former President Franklin Roosevelt’s controversial third and fourth terms during World War II, which bucked a two-term norm set by George Washington.

Changing presidential term limits with a new constitutional amendment would need support from three-fourths of the states.

But some legal experts point to plausible strategies for attempting end runs around the 22nd Amendment under unusual scenarios.

What Trump has said, and what the 22nd Amendment says

While Trump regularly spins up news cycles with surprising or unprecedented comments, his latest public remarks are not the first time the 78-year-old president has mentioned a potential pursuit of a third term.

“I suspect I won’t be running again,” Trump reportedly told a group of House Republicans last November, after he won the election — that is, he added to laughs, unless the lawmakers say he’s “good” enough for them to “figure” out a way.

Trump’s remark drew swift pushback from Democratic Rep. Dan Goldman of New York, who quickly introduced a House resolution to reaffirm that the Constitution’s term limits for elected presidents apply to Trump and his non-consecutive terms.

The 22nd Amendment’s words would undermine any argument that Trump’s non-consecutive terms grant him an exception to the two-term limit, says William Baude, a professor who leads the Constitutional Law Institute at the University of Chicago Law School.

“There is no wiggle room” on the rule that a president can’t be elected more than twice, Baude says. “That’s a clear statement of the Constitution, and I don’t think any serious person is going to interpret it otherwise.”

Three days after Trump’s second inauguration, however, Republican Rep. Andy Ogles of Tennessee introduced a joint resolution to propose a change to the Constitution so that a person could be elected president three times if they had not been previously elected to two consecutive terms.

But winning an election is not the only way a person can become president. And there are hypothetical situations involving presidential succession, Baude adds, that are “not addressed as fully” by the Constitution’s text. They reveal ways in which the common understanding of the 22nd Amendment’s presidential term limits could be challenged in court.

One theory: Trump could become vice president and then president in 2029

Asked by NBC News about a scenario involving Vice President Vance, Trump said “that’s one” method.

A 1999 Minnesota Law Review article called “The Twice and Future President” explains that a twice-elected president could become vice president and then — if the current president were to be removed from office, resign or die — return as commander in chief.

The federal government-sanctioned record of interpretations of the Constitution also points to the possibility of a former two-term president serving as speaker of the House of Representatives or another federal officer who could become president through the Presidential Succession Act of 1947.

All of these hypothetical situations get around a key word in the 22nd Amendment’s restriction — “elected.” Bruce Peabody, one of the law review article’s coauthors who is now a professor of government and politics at Fairleigh Dickinson University, says Congress chose that term after considering proposals that would have made a twice-elected president not eligible to “hold” the office again.

“There definitely was awareness that the more narrow language they’d come up with was not going to cover every scenario,” explains Peabody, adding that it can be difficult to make sense of the lawmakers’ intent.

Their word choice, however, has given rise to what Brian Kalt — a law professor at Michigan State University who wrote about a hypothetical two-term president getting nominated to run for vice president in Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies — calls a loophole in the 22nd Amendment’s two-term limit.

Dwight Eisenhower, the first U.S. president to be constitutionally barred from running for a third term, alluded to it in 1960.

Asked whether he wanted to formally declare support for then-Vice President Richard Nixon as the Republican presidential nominee, Eisenhower drew laughter at a press conference when he replied: “You know, the only thing I know about the presidency the next time is this: I can’t run. But someone has raised the question that were I invited, could I constitutionally run for vice president, and you might find out about that one. I don’t know.”

In the decades since then, similar chatter about the loophole in legal and political circles has surrounded other twice-elected presidents, including Ronald Reagan, Bill Clinton and Barack Obama.

“That talk never was all that serious. But in a certain situation where the president is sort of more popular than the common understanding of the Constitution, you better believe people will jump all over any loophole they can and allow that person to flout term limits. And we’ve seen it in other countries. Everywhere there are term limits, there are vulnerabilities,” Kalt says.

Other legal experts, however, point to the last sentence of the 12th Amendment, which covers the Electoral College, as a roadblock for any twice-elected president attempting to return to the White House through the vice presidency. It says that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

Still, in court, a lawyer could try to argue that being a “natural born” citizen, at least 35 years old and a resident within the U.S. for at least 14 years are the only presidential eligibility requirements specified in the Constitution, says Stephen Gillers, a professor emeritus at New York University School of Law, who proposed in 2004 that Clinton run for vice president.

“I want to make it very clear that I’m identifying an argument that Trump could make in order to get back into the White House. I’m not endorsing it,” Gillers says. “But we know from experience that even if it’s far-fetched and it offers the possibility of a third presidential term, Trump will make it. If his health holds up, he will make the argument he likes the job. Whether or not it succeeds in court is another matter.”

Gillers posits that Trump “could make a deal” with Vance that, ahead of the 2028 election, they switch places on the Republican ticket, and if they win the White House again, Vance resigns and Trump becomes president.

To avoid any debate about whether the 12th Amendment forbids presidential electors from choosing a twice-elected president as vice president, Gillers says there could be a similar arrangement in which Trump does not run on the winning Republican ticket but, after the newly elected vice president resigns, becomes vice president with congressional approval.

“It is not implausible. And just the existence of the possibility of it in the next four years gives Trump power that enhances his position,” Gillers says. “The members of Congress in 2027 will know that they’re not dealing with a lame duck necessarily because Trump could still hold out, through 2027 and 2028, the possibility of his return to power and the power that that possibility gives him — to get Congress to bend to his will.”

How would the U.S. Supreme Court react to any attempt at a third Trump term?

A more straightforward possibility that some constitutional scholars have not ruled out is Trump running for a third term as president regardless of what the 22nd Amendment says.

“If you think about it, the 22nd Amendment assumes that one would follow the Constitution,” says Gloria Browne-Marshall, a constitutional law professor at John Jay College of Criminal Justice. “But if one is not going to follow the Constitution, what difference does it make what’s written there?”

Any attempt at a third Trump administration would likely spark lawsuits that end up before the U.S. Supreme Court. And in this polarized political environment, it’s difficult to predict how the court’s conservative supermajority would rule, says Aziz Huq, a constitutional law professor at the University of Chicago Law School, who has been focusing on democratic backsliding.

“The court has ways of ducking the 22nd Amendment question. And if the court ducks the question, then it would be up to other actors — whether in the states, for example, in the process of nominations and primary votes or Congress at the moment at which it determines who won the Electoral College — to decide on whether the 22nd Amendment had the force of law,” Huq says.

Browne-Marshall warns that such a test of the Constitution’s presidential term limits could further destabilize the U.S. political landscape at a time when the ability of the courts and Congress to serve as checks and balances to the White House is under question.

“I don’t think everyone is going to sit back and let him become a king without fighting back through protest,” Browne-Marshall says. “We’re looking at a lot of the weight to fall on the regular people if we don’t have the checks and balances of the other two branches.”

The timing of Trump’s latest comments — more than three years before the 2028 election — leaves open the possibility of a new constitutional amendment that definitively blocks a potential third Trump term, Peabody, the Fairleigh Dickinson University professor, points out.

“The nation is on notice, and it has the power to act if it doesn’t like this possibility,” Peabody says.

Edited by Benjamin Swasey