Trump's Not-So-Cute Means of Becoming President-for-Life
As if we don't have more immediate problems, on Monday a reporter asked President Trump whether he was considering running for Vice President in 2028 so as to assume the presidency upon the immediate resignation of the nominal head of the ticket and thus circumvent the 22nd Amendment. Trump, displaying greater understanding of the scenario than I would have expected, said that he'd be "allowed to do that" but added: "I wouldn't do that. I think it's too cute. Yeah, I would rule that out because it's too cute. I think the people wouldn't like that. It's too cute. It's not - it wouldn't be right."
At the same time, however, Trump didn't rule out unspecified other means by which he might serve a third term. But then yesterday, both House Speaker Mike Johnson and Trump himself conceded that the 22nd Amendment precludes a third term. Or did they? Trump said "based on what I read, I guess I’m not allowed to run. So we’ll see what happens." Although headline writers treated that statement as a concession, one wonders why we need to "see what happens" if it is in fact a firm concession.
What could happen? Trump frenemy Steve Bannon recently claimed that there is "a plan" to circumvent the 22nd Amendment. To be sure, Bannon had also fraudulently claimed that the money he was raising from Trump-supporting marks was going to build a wall at the southern border, so his plan might well be filed in the same nonexistent folder as Trump's ("concepts of a") plan to replace Obamacare with "something terrific." Even so, let's game out the options.
(1) The fact that Trump said he has "ruled out" the run-for-VP scenario doesn't mean he has in fact ruled it out or that even if he has ruled it out that he won't change his mind and then rule it in. Trump said as recently as July that his ballroom project wouldn't touch the East Wing of the White House. He said that he'd be a dictator only on day one of his second presidential term. Etc.
(2) Trump's claim on Monday that he'd be "allowed to do that," if taken to mean that he could legally run for Vice President in 2028, is arguably correct. As I explained at length a little less than a year ago, by its terms, the 22nd Amendment bars a two-term president from running for a third term but not from serving one; and if the 22nd Amendment does not bear on eligibility for the presidency, then the ploy also avoids the 12th Amendment's rule that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States." However, the highly formalist reading of the 22nd Amendment that would allow its circumvention by a two-term president running for Vice President would pretty clearly violate its spirit. Perhaps that's what Trump meant by calling the maneuver "too cute."
(3) Let's assume that Trump doesn't run for VP. Perhaps he doesn't trust whoever would be the nominal top of the ticket (JD Vance? Marco Rubio? Laura Loomer?) to keep their word and resign. Perhaps he thinks that his most rabid supporters wouldn't understand the ploy and wouldn't turn out to vote. Whatever the reason, how else might Trump secure a third term? My essay on this topic last year referred to a few possibilities that I'll recount before adding a new one.
(4) In theory, Congress could propose and the states could ratify an amendment repealing the 22nd Amendment. This would be perfectly legal. It also certainly won't happen.
(5) Another possibility is that Trump would simply refuse to give up power. At that point, whether he continued in the presidency would depend on whether the military (or a sufficient subset thereof) remained loyal to the Constitution they swore to uphold or to Trump. I don't discount this sort of seizure of power as a genuine possibility, but I also don't claim any expertise as a legal scholar in discussing how it would play out. In this scenario, Trump might call himself "president," as might those who keep him in power, but he would be a president of a regime under some other system of government.
(6) In my earlier essay, I also referred to the possibility that some combination of a subservient Congress and Trump himself might make a claim that because of "interference" by Robert Mueller and Democrats, his first term didn't count. This scenario could be combined with scenario (5) as the pretext for a seizure of power or for Trump's appearance on the ballot and either genuine or purported victory in the 2028 presidential election.
(7) Perhaps Trump and his enablers will offer multiple, conflicting grounds for why they think Trump is eligible to run for a third term, but the scenario that most concerns me is what happens if he does so. Suppose, in other words, that Trump simply announces his candidacy for president in 2028 and effectively dares state election officials to keep him off the ballot. The issue would first arise at the primary stage, but in the world in which this works, Trump has no serious challengers for the Republican nomination. The key point is that whatever state election officials and the courts say or do, the party nominates him. This strikes me as plausible.
The real action begins when blue-state officials refuse to list Trump on the general election ballot on the ground that he is ineligible under the 22nd Amendment. Trump and his campaign would sue, and I suspect that some district courts and courts of appeals would side with the states. The case would get to the Supreme Court. What happens then?
In principle, Trump v. Anderson should have no direct bearing on the issue. Whether Trump was an insurrectionist ineligible to hold office pursuant to Section 3 of the 14th Amendment required some fact finding, and the Court was worried that different states would reach different conclusions. I think this worry was misplaced even in that case, but it was at least connected to uncertainty over the facts. By contrast, any judge who can read will be able to see that Trump is ineligible to be on the ballot in virtue of the 22nd Amendment--in the same way that a 25-year-old would be ineligible.
Moreover, the 22nd Amendment is self-executing. To be clear, the Court should have recognized that Section 3 of the 14th Amendment is also self-executing, but in Trump v. Anderson, the Court said that because Section 5 of the 14th Amendment gives Congress enforcement power, Section 3 doesn't have any force until Congress acts. That was a very bad argument, because Section 3 itself empowers Congress by a two-thirds vote to "remove the disability" it imposes, thereby indicating that insurrectionists are ineligible even without any action by Congress. But at least in Trump v. Anderson the Court could point to enforcement power as set forth in Section 5. The 22nd Amendment has no congressional enforcement provision, indicating that it's unquestionably self-executing.
Nonetheless, I worry that the Supreme Court would point to the fact that red states were allowing Trump to run despite the 22nd Amendment as a reason to disempower any states to keep him off the ballot. Citing Trump v. Anderson, the Court might say that whether Trump is eligible under the 22nd Amendment is a nonjusticiable political question that Congress can resolve on January 6, 2029.
But how, you ask, would the Court distinguish Bush v. Gore? Easy peasy. The Court itself in that case provided the answer: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." One envisions the per curiam opinion kicking the 22nd Amendment issue to Congress simply ignoring Bush v. Gore or dismissing its presidential weight in a footnote.
You can now imagine what happens when Congress convenes on January 6, 2029. So long as Republicans continue to have a majority, they would vote to reject any 22nd Amendment challenge -- and voilà -- Trump is sworn in for his third term. If you think that Mike Johnson would hesitate to go along with this scheme, I would remind you that he led the effort of 126 House Republicans to have the Supreme Court invalidate the electoral votes of swing states that went for Biden in 2020. Indeed, even now, as I observed in my Verdict column yesterday, Johnson is abusing his office to subvert the Constitution and democracy by refusing to administer the oath of office to Adelita Grijalva.
None of this is remotely cute.