Can Trump serve third term? Yale Law prof sees 'possible loophole' to 22nd Amendment ban
Can President Donald Trump serve a third term? The 22nd Amendment appears to prevent it. “No person shall be elected to the office of the president more than twice,” it reads. But could a president serve a third term if he isn’t “elected” to the office? (Image from Shutterstock)
Can President Donald Trump serve a third term? The 22nd Amendment appears to prevent it. “No person shall be elected to the office of the president more than twice,” it reads. But could a president serve a third term if he isn’t “elected” to the office?
The use of the word “elected,” rather than “serve,” is “an unfortunate drafting error,” in the view of Michael C. Dorf, a professor at Cornell Law School, who spoke with the Washington Post.
The Wall Street Journal (gift link via How Appealing), the Washington Post and the New York Times have coverage of the constitutional questions.
The issue is getting attention since Trump told NBC News that “there are methods” by which he could serve a third term, and he wasn’t joking.
NBC News asked Trump about a scenario in which Vice President JD Vance would run for president and then hand the office of president to Trump.
“That’s one” method, Trump responded.
But Trump could not be Vance’s vice president, according to many experts who spoke with the Wall Street Journal and the New York Times. That’s because of the 12th Amendment, which says, “No person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.”
Because Trump wouldn’t be eligible to be president, he wouldn’t be eligible to be vice president under the 12th Amendment, said Akhil Reed Amar, a constitutional law professor at Yale Law School.
Taking a contrary view are the authors of an article in the Minnesota Law Review written when former President Bill Clinton was president. The article argues that the 12th Amendment might not bar a two-term president from the vice presidency because “it is by no means clear that the term ‘eligibility’ as used in the 12th Amendment refers to or incorporates a person’s reeligibility under the 22nd Amendment” that followed.
The 12th Amendment eligibility provision was likely referring to constitutional requirements for the presidency based on citizenship, residency and age, according to the article co-authored by Bruce G. Peabody, a government and politics professor at Fairleigh Dickinson University. The ambiguities might allow a vice presidential run by a two-term president, he told the Wall Street Journal.
There is another possible scenario. What if Vance is elected president, he appoints Trump as the secretary of state, Vance and his vice president resign, and others in the line of succession before the secretary of state step aside?
That could work if Congress changes the federal presidential succession law to eliminate the ban on cabinet officials becoming president if they are ineligible for the job, according to Amar.
“There is a possible loophole. I wish it weren’t true, but there is,” Amar told the Wall Street Journal.
But some experts said there should be no debate on the issue.
The history of the 22nd Amendment’s drafting and ratification “make clear beyond doubt it was written that way to guard against the danger that anyone could use the office to assert long-term tyrannical control in the United States,” said Deborah Pearlstein, a professor at Princeton University, in an email to the Washington Post.
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