Can Mr. Trump serve a third term as President?
Mr. Trump has floated the idea that he might actually be able to serve a third term as President. Although on the face of it this seems absurd, we might take a moment to consider how this might be constitutional or achievable. I can see three potential scenarios in which he might accomplish this.
SCENARIO 1: CLAIM THAT THE CONSTITUION ONLY PROHIBITS 3 SEQUENTIAL TERMS
22nd Amendment:
“No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”
The argument here is that the wording implies that the restriction is for consecutive terms because the second part of the sentence refers to a President who is serving out the term of the previous President. This seems a stretch and will probably not pass SCOTUS review, but Mr. Trump has already mentioned this several times.
SCENARIO 2: THE AMENDMENT ONLY MENTIONS “ELECT”
Here, the argument centers on the word “elected”. The amendment, in this reading, does not refer to “serving” as President, it only prohibits being “elected” for more than two terms. For example, let’s look at a situation in which Mr. Trump does not run for President or Vice President, but is elected Speaker of the House of Representatives by the majority party. There is no restriction in the Constitution or in Law that requires the Speaker of the House to be a member of the House, nor even an elected official. So, there is no rule or law that prohibits the House from electing any citizen as it’s Speaker. Mr. Trump could be made Speaker by a simple majority vote in the House.
Now, in the line of succession, the Speaker of the House is number 3. If the President and the Vice President were to become incapacitated, or if they were to resign, the Speaker of the House would become President. If one reads the 22nd Amendment in the strictest sense, Mr. Trump could then “serve” as President even though he would have been ineligible to have been elected to that position.
As the newly sworn-in President, he could then appoint anyone as his Vice President. The 25th Amendment says:
“Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress”.
So, theoretically he could appoint as his Vice President the President who had just resigned. In fact, after being appointed Speaker of the House during the summer, he could actually campaign alongside the Republican ticket, with the open intention of taking over as President after the two duly elected shadow candidates resign, and with those candidates endorsing the plan on the stump.
SCENARIO 2a: THE AMENDMENT ONLY MENTIONS “ELECT”.
The cleanest implementation of this scenario is via the Speaker of the House; but could it also occur by Mr. Trump running for election as Vice President? There is no restriction in the 22nd Amendment that prohibits a previous President from serving as Vice President. The question here is could an individual who has already served two terms as President be allowed to be elected Vice President, and then for the President to resign and have that Vice President take over as President for a third term?
Again, this hinges on the interpretation of the word “elected”. He would not have been “elected” President, he would only be “serving” as President.
The pertinent Constitutional Amendment here is the 12th:
“But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
This scenario requires the reading of this to insert acceptance of the above interpretation of the 22nd Amendment which, having been passed AFTER the 12th might be read as superseding the restrictions of the 12th Amendment: that he would only be “ineligible” to be “elected”. He would not be ineligible to “serve” as President.
SCENARIO 3: THE PUTIN MODEL – REWRITE THE CONSTITUTION
Should the interpretation of the Constitution as described above fail in the Supreme Court, what about just changing the Constitution? On the surface this seems pretty difficult. The first step for a new Amendment is passing a 2/3 vote in both Houses of Congress, and an Amendment to allow a President to serve a third term, whether sequential or not, would seem impossible.
So, this is dead, right?
No.
There is another way to change the Constitution, and that is through a new Constitutional Convention. This was the Putin Model. When he was forced to step down as President based on a term limit, he supported Medvedev for President, while he became Prime Minister. During Mr. Medvedev’s Presidency, the Russian Constitution was rewritten so that Mr. Putin could be reelected, and reelected as many times as he chose to run, and so he was, replacing Medvedev.
President Xi did the same thing in 2018, changing the Constitution to allow him to serve indefinitely.
Could the US rewrite the Constitution?
Article V of the US Constitution:
“…on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.”
Yes. In order to call for a new Constitutional Convention, 34 states, and their legislatures would need to call for it.
And where do we stand?
As of today, since 2014, 19 state legislatures have passed such a call for a Constitutional Convention.
An additional 8 states have passed such a resolution in one chamber and are considering it in the other.
That would make 27 states. Only 7 more states would need to pass such a resolution to require a Constitutional Convention.
ONLY 7.
An additional 16 states are considering such legislation but have not passed it in either chamber.
The remaining states having taken no action so far are CA, OR, MI, CO, NY, ME, DE, MD, VA, and NC.
On the other hand, if SCOTUS should rule that there is no time limit on the call for a Constitutional Convention, you can count over 34 states to have ALREADY called for a Convention over the past 150 years.
Once a convention is called, there are few restrictions about what they might pass; they well might change their own rules going forward.
Legal experts seem to agree that it does not matter which issue a particular state uses in their call for a new Constitutional Convention. One state might call for a look at a balanced budget amendment, one might call for a look at abortion, one for allowing a Presidential line-item veto, another for gun control, etc. However, no matter what a particular state calls for, once the Constitutional Convention is convened, any amendment or change could be voted upon. And although the current Constitution requires proposed and passed resolutions for new Amendments to be sent back to the states for ratification, there may be nothing to stop the delegates as such a Convention from changing those rules also.
There is also no explanation in the US Constitution about how such a Convention would operate. There is no rule on whether each state would get 1 vote, or votes equal to their electoral count, or votes based on their population, or whether they meet other conditions or qualifications. The delegates are not restricted to elected officials nor are there any sanctions against lobbyists, special interest groups or donors. There is no rule on who would officiate, who would referee conflicts and who would have final say.
This is what Putin did. This is what Xi did. They used the Constitutional Convention approach to rewrite their constitutions to give them power for life. Mr. Trump has expressed on multiple occasions his respect for both of those “strong” leaders and his envy for their ability to serve as many terms as they choose.
Please understand, I am not advocating for this, nor am I claiming that all of Mr. Trump’s supporters would advocate for it either. But one thing we have learned is that Mr. Trump is one of the most effective politicians in our lifetime. He has an innate sense of marketing and little filters to control what he says. Many Republicans having heard Mr. Trump opine on a subject, have shown a remarkable flexibility in pivoting to positions that they once opposed.
Support for calling for a new Constitutional Convention comes with some very significant risks. Once in place there is nothing to prevent the delegates from addressing many, many more changes in the Constitution than what the delegate states have chosen in advance, and in today’s partisan environment we all need to be concerned about what could happen to the American Experiment.