President Donald Trump said in a Sunday-morning phone call that he was “not joking” about a third term, adding that “it is far too early to think about it.”
So… technically speaking… there is a way that may be legally dubious, but it’s not expressly, objectively against the constitution and hasn’t been ruled on in any court. The term limits in the constitution do expressly forbid being elected to more than two terms or more than once if you have served more than half a term that your weren’t elected president (like if you took over as VP after the President dies/resigns like LBJ and Ford). But there is nothing that prevents him from taking a position in the line of succession. He could even run as VP for another candidate. If he did so, even if they said publically that it was their intention for the presidential candidate to resign immediately once taking office and for Trump to become president again, there doesn’t seem to be anything preventing that. It certainly defies the spirit of the law, but not the letter of it.
Alternatively, suppose the courts did rule that approach illegal. They just move the goal post. He could take the Speakership and be next in line after the VP. He doesn’t even have to win an election to do that. Speaker of the House doesn’t have to be a House Representative. The GOP could nominate him to the house and confirm him without so much as a public poll. Then, should the Republicans win the Presidency, they could simply resign both President and VP and then Trump assumes office again.
None of that expressly breaks the law. Which is fucking nuts. But they left that loophole open by writing in the language of the amendment not that a person “cannot serve more than two terms as president” but that they cannot be “elected” to more than two. Given that there are many routes the presidency that do not require you be elected to that role, that seems like a glaring omission that only requires a conniving group of conspirers willing to evacuate positions of power for Trump. Will that happen? I don’t know. But can it? It does seem so.
But there is nothing that prevents him from taking a position in the line of succession.
The Constitution left the matter of Presidential Succession up to Congress, and Congress set it up in the Presidential Succession act. That act includes clauses that say it only applied to those “eligible to be President” and not to those who have a "failure to qualify* for the office.
So, simply putting Trump in the line of succession is not enough to get around the Constitutional bar on a third term. He would still be ineligible. There is precedent to enforce this, too: there have been a handful of cabinet secretaries over the years who were not natural-born citizens, and they were not included in the line of succession. Madeline Albright is the one I remember; she was born in Prague and was not eligible despite being Secretary of State.
With all that said, succession is determined by Congress and I suppose they could just pass a law to do whatever they wanted. They’d have to blow up the Filibuster for it. Would they? It would surely get challenged in court but even if the Supreme Court disallowed it, would Trump listen? The Court would need to find a way to enforce it.
Right, but the problem is there is nothing that makes him ineligible to be President. The 22nd amendment does not make one unqualified ot be President after serving two terms does it? It says “No person shall be elected to the office of the President more than twice.” Apart from the additional bit about serving a partial term, that’s it. The limitation is on being elected, not serving, and the amendment itself identifies that there is a difference given they use the term “holding” the office when talking about someone being President without being elected. So, frankly, were I a law-as-written kind of judge, I would have to recognize that distinction and rule that the 22nd amendment does not rule out 3rd terms through succession. Unless there is another law or precedent that I’m unaware of, there does seem to be a pretty glaring opening here.
He is eligible to be President though. That’s my point. He just can’t be elected president again. If he weren’t eligible to be President, why would you be concerned about him becoming President through succession by becoming the Speaker?
He’s not wrong, there are ways, none legal.
So… technically speaking… there is a way that may be legally dubious, but it’s not expressly, objectively against the constitution and hasn’t been ruled on in any court. The term limits in the constitution do expressly forbid being elected to more than two terms or more than once if you have served more than half a term that your weren’t elected president (like if you took over as VP after the President dies/resigns like LBJ and Ford). But there is nothing that prevents him from taking a position in the line of succession. He could even run as VP for another candidate. If he did so, even if they said publically that it was their intention for the presidential candidate to resign immediately once taking office and for Trump to become president again, there doesn’t seem to be anything preventing that. It certainly defies the spirit of the law, but not the letter of it.
Alternatively, suppose the courts did rule that approach illegal. They just move the goal post. He could take the Speakership and be next in line after the VP. He doesn’t even have to win an election to do that. Speaker of the House doesn’t have to be a House Representative. The GOP could nominate him to the house and confirm him without so much as a public poll. Then, should the Republicans win the Presidency, they could simply resign both President and VP and then Trump assumes office again.
None of that expressly breaks the law. Which is fucking nuts. But they left that loophole open by writing in the language of the amendment not that a person “cannot serve more than two terms as president” but that they cannot be “elected” to more than two. Given that there are many routes the presidency that do not require you be elected to that role, that seems like a glaring omission that only requires a conniving group of conspirers willing to evacuate positions of power for Trump. Will that happen? I don’t know. But can it? It does seem so.
The Constitution left the matter of Presidential Succession up to Congress, and Congress set it up in the Presidential Succession act. That act includes clauses that say it only applied to those “eligible to be President” and not to those who have a "failure to qualify* for the office.
So, simply putting Trump in the line of succession is not enough to get around the Constitutional bar on a third term. He would still be ineligible. There is precedent to enforce this, too: there have been a handful of cabinet secretaries over the years who were not natural-born citizens, and they were not included in the line of succession. Madeline Albright is the one I remember; she was born in Prague and was not eligible despite being Secretary of State.
With all that said, succession is determined by Congress and I suppose they could just pass a law to do whatever they wanted. They’d have to blow up the Filibuster for it. Would they? It would surely get challenged in court but even if the Supreme Court disallowed it, would Trump listen? The Court would need to find a way to enforce it.
Right, but the problem is there is nothing that makes him ineligible to be President. The 22nd amendment does not make one unqualified ot be President after serving two terms does it? It says “No person shall be elected to the office of the President more than twice.” Apart from the additional bit about serving a partial term, that’s it. The limitation is on being elected, not serving, and the amendment itself identifies that there is a difference given they use the term “holding” the office when talking about someone being President without being elected. So, frankly, were I a law-as-written kind of judge, I would have to recognize that distinction and rule that the 22nd amendment does not rule out 3rd terms through succession. Unless there is another law or precedent that I’m unaware of, there does seem to be a pretty glaring opening here.
You explicitly cannot be a VP if you’re ineligible for presidential office.
Speakership though…
He is eligible to be President though. That’s my point. He just can’t be elected president again. If he weren’t eligible to be President, why would you be concerned about him becoming President through succession by becoming the Speaker?