In the early days of US President’s Donald Trump’s second stint in the White House, presidential norms, congressional statutes, Supreme Court decisions and even clear constitutional constraints have been summarily brushed aside as mere inconveniences. In keeping with the presidential Caesarism he has thus far exhibited – and many of his supporters have enthusiastically cheered on – it would not be shocking to see Trump attempt to stay in office for a third term.
In fact, longtime Trump whisperer Steve Bannon openly floated this idea at Conservative Political Action Conference (CPAC) and Trump himself followed suit more than once. House Republican Committee Chair Kevin Hern tried to dismiss Trump’s comments, claiming, “He understands the Constitution. … [H]e knows the Democrats are going to go crazy. He loves messing with them, and they’re so easy to get riled up, so there’s no way he thinks he’s going to have a third term.” But Trump made his apologists look like fools when he subsequently expressed to NBC News that he is “not joking” about seeking a third term.
It’s time to take this threat seriously.
I’ll give you the bad news first: While most of us are aware that the Constitution prohibits a president from serving more than two terms, some legal scholars have argued that there is a loophole that Trump, despite being twice-elected, could exploit. Unlike his plainly unconstitutional attempt to abolish birthright citizenship for everyone except the children of citizens and green card holders, the third-term question has been a live and serious debate within legal circles for years prior to Trump’s ascent.
Now for the good news: The best reading of the Constitution really does rule out a third Trump term. In the end, even the sophisticated legal arguments for allowing a third presidential term depend on exploiting loopholes in a document that isn’t written to exhaustively anticipate and exclude them and therefore, as Chief Justice John Marshall warned us, end up undermining the very foundations of our Republic.
Ordinarily, this is the point where I would bring in relevant case law, or precedents of various kinds, to help elucidate the constitutional dispute. But since the ratification of the 22nd Amendment – the term-limit amendment enacted after Franklin Delano Roosevelt became the only president to serve more than two terms – the two-term norm has been so firmly observed and accepted that the courts have not had to formally adjudicate it – until now, that is, when a norm-buster like Trump arrived on the scene and made it a live issue for the first time.
What’s the (Alleged) Loophole?
The basic idea is this: the 22nd Amendment contains two prohibitions:
- A person may not be elected to the presidency more than twice.
- A person who has served more than two years of someone else’s term (e.g., by being vice president when the president dies, resigns, or is removed) may not be elected to the presidency more than once.
Now consider the following three potential events in a politician’s career: (a) get elected vice president; (b) as vice president, take office upon the resignation of the president early in his or her term; (c) get elected as president. On its face, the 22nd Amendment rules out the sequence a-b-c-c. But the Amendment does not (supposedly) rule out the sequence c-c-a-b. It has an apparent ordering: no getting elected twice after you’ve taken over for someone else’s presidency (for 2+ years). It doesn’t say: no taking over for someone else’s presidency after getting elected twice.
Thus, the loophole: in 2028, J.D. Vance (or whoever) successfully runs for president with Trump as vice president. On January 20, 2029, Vance’s first inaugural address is two words: “I resign.” Trump becomes president by the ordinary rules of succession just like if he’d gotten elected to a third term. Checkmate, libs!
You might recall that the 12th Amendment says that “no person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.” But, as Cornell Law professor Michael Dorf argues, “a person who has twice before been elected president is not ineligible to the office of president; such a person is merely ineligible to be elected to the office of president. And a vice president who takes office as president by operation of Section 1 of the 25th Amendment is not elected president.” While Dorf is no advocate of this scheme, he is right to draw our attention to the worrying textual difference between the word “eligible” in the 12th Amendment and the word “elected” in the 22nd.
In his in-depth academic overview, constitutional law scholar Bruce Peabody concedes that there are some ambiguities surrounding the third-term question but says he found no conclusive evidence that “the amendment’s authors and supporters consciously wished to leave open a three-term President ‘loophole.’” (And, as I’ll suggest below, we do have evidence for the 22nd Amendment’s basic purposes, and the third-term loophole violates the most minimal interpretation of them.)
It’s worth noting, though, that this loophole is troublingly similar to the notorious device that Vladimir Putin used in 2008 to hold onto power when he was constitutionally barred from another term as Russia’s president. It probably seems crazy to you. And, indeed, we have good reason not to read the Constitution that way.
Clever Constitutional Loopholes are Reading Errors
To see why, compare the Constitution to the IRS code. The IRS code (with its accompanying regulations) has a million little technical details. It’s written with the assistance of armies of experts, and it takes still more armies of experts to interpret it. As we all know, it contains countless loopholes—some intended, some unintended—in its nooks and crannies. Because of this complexity and detail, it also contains numerous traps for the unwary. Accordingly, ordinary people find themselves turning to special software and special tax preparers to make sense of it. It’s inherently inaccessible, and that’s why those who can afford fancy tax lawyers and fancy tax shelters still get away with paying much less than we ordinary peons pay.
In McCulloch v. Maryland, Chief Justice Marshall explained why constitutions are different and need to be read in a different way:
A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.
While that quote was about Congress’s powers as outlined in Article I, Section 8 of the Constitution, it rings true for the rest of the text as well. The Constitution is not the same kind of document as a tax code. It isn’t just—or even primarily—for pettifogging lawyers to read; it’s also for ordinary citizens. It’s the authoritative description of how we’re trying to live together as a people; the set of rules that we’re expecting our elected officials to follow. We can bitterly debate the intention or purpose of the Constitution and the accompanying amendments—but we can’t in good faith subvert its entire purpose. The Constitution is not about technicalities and tricks and traps; it’s about collective goals. Reading loopholes into the Constitution is what Jamelle Bouie aptly called a “bad case of being lawyer-brained.”
When we apply that reasoning to the 22nd Amendment, we’re invited to ask whether we really have to swallow a reading that defeats its basic idea—a term limitation that doesn’t really impose a term limitation at all—and defies the ordinary understanding of everyone who looks at it except for a handful of hyper-technical lawyers. If the purpose of the 22nd Amendment is to prevent a president who has served two terms from running again, must we adopt a reading of it that frustrates that purpose?
Chief Justice Marshall would say no—we can only adopt a reading of the 22nd Amendment that is faithful to its manifest ends.
Marshall’s point isn’t that debates over the Constitution’s meaning are out of bounds—the Supreme Court’s very existence relies on the ongoing importance of interpreting our guiding document! But there is a world of difference between constitutional debates arising from contrasting—and principled—interpretive frameworks (such as between originalists and those who believe that broad language in the text can be interpreted in light of present-day values) and the brazen attempt by Trump to seize on a loophole to subvert the very purpose for which the amendment was appended to the Constitution.
What if They Meant it?
That said, it seems fairly straightforward that the drafters of the 22nd Amendment should have tightened up the language. They were hyper-fixated on the problem of what to do with a president who wants to be elected after serving as vice president. Because of that fixation, it simply didn’t occur to them that events might go in the opposite order. There’s certainly no evidence that they intended to hide a loophole in the text, waiting for clever lawyers to discover and hand over to an ambitious two-term president looking for a third.
As Christian Mott has explained, evidence from the congressional proceedings leading up to the 22nd Amendment shows that the existing language was an effort to render the language simple and understandable, just as Chief Justice Marshall would have expected.
Unfortunately, in these efforts at simplicity, Sen. Warren Magnuson of Washington introduced the language of “election” rather than “eligibility” to the office, without anticipating that later generations might read the language differently. In fact, Magnuson explicitly stated his understanding of the language was to “prevent a man’s deliberately using the office of President in order to perpetuate himself in office; that is, for more than two terms.”
Not so fast, however. Those who believe in the loophole have an answer to this argument. They worry that too-aggressively invoking the 22nd Amendment’s obvious purposes, or even its ordinary public understanding, might make the intent or spirit of the amendment do too much work. Typically, their point is some version of the following: “Even if you think that everyone concerned meant to keep presidents from serving too long, how long did they think was too long? You can’t just infer a concrete limit that wasn’t put into the text from a vague notion of some overall cap that they had in mind. And you can’t know how specific the goals really were.” In other words, while “Come on, man! Be serious!” is a real argument, it isn’t terribly specific or helpful in interpretation.
Fair enough, but the problem that these scholars ignore is that the 22nd Amendment, if it means anything at all, must have meant that a president may not have unlimited terms. That’s the least demanding plausible purpose. Yet if the loophole is real, a president could serve as many terms as desired, just so long as he or she can continue to find willing patsies to sit at the top of the ticket.
That’s because nothing in the Constitution limits the number of times that a person may be elected vice president. Imagine that the Vance-Trump ticket wins in 2028, and Vance resigns at inauguration. Then, in 2032, Vance wins “reelection” and again resigns in Trump’s favor. Now, in 2036, Vance isn’t eligible, so Trump summons Marco Rubio. The Rubio-Trump ticket wins, and Rubio resigns five minutes after inauguration. Then, in 2040, assuming some breakthrough in life-extension technology … well, you get the point. The loophole permits a president-for-life. Whatever the drafters (and those who ratified it) meant to do with the 22nd Amendment, they didn’t mean that. Because that scenario is absurd, the loophole must be seen as interpretively illegitimate.
For the lawyerly technicians out there, this reductio ad absurdum is important. The reality is that no rational drafter would write a rule barring the president from being elected more than twice, specifically close one loophole where someone might try to use finishing out someone else’s terms as a way around the two-term limit, and yet intentionally leave a loophole that achieves the same result in the opposite order. Either they wanted to let people do an end-run around the two-term limitation by taking the job from the vice presidency or they didn’t—and the overwhelming evidence from the actual text is that they didn’t.
Vice Signalling
The simple fact is that the Constitution’s framers were not at their best when it came to specifying the role of the vice president and with the issue of presidential succession. How can we tell? So far it’s taken three amendments—the 12th, 22nd, and 25th—to clean up the mess. The 12th corrected the ridiculous situation where the president and vice president could be political opponents, and the 25th corrected the ridiculous situation where the president could become temporarily incapacitated without any clear authority for the vice president to step into the role.
But there remain obvious drafting errors plaguing the vice presidency. Here’s another instance: Ordinarily the vice president, as president of the Senate, presides over all of the Senate’s business. This includes impeachment trials. The Constitution specifically provides that when the president is tried, the Chief Justice presides. That’s obvious good sense: We don’t want the vice president presiding over the president’s trial since the incentives are all wrong (oddly, in both directions—a loyal vice president would want to protect the boss, while an ambitious one would want to get rid of him or her and take the job). But the Constitution says nothing about who presides over an impeachment trial for a vice president. Are we to suppose that the vice president gets to preside over his or her own trial? Have we found another loophole? Or are we willing to accept the obviously correct conclusion that the Constitution’s drafters did not intend for the sitting vice president to conduct his or her own impeachment trial?
In an ideal world, we’d have another constitutional amendment fixing the aforementioned glitches in the specifications for the vice presidency. In our actual world, we don’t need to read it to create a bunch of surprise loopholes in otherwise clear constitutional rules. That includes the term limits on the presidency.
If you’re still tempted to accept the loophole after this argument, then please forward this article to Barack Obama and let him know that I’ll be happy to have him as my running mate in 2028.
This article was originally published on The UnPopulist.
