#12th amendment

Trump Weird News - Unlikely, But Theoretically Could Be 3rd Term

Paul Gowder at The UnPopulist:

In the early days of 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 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, JD Vance (or whoever) successfully runs for president with Donald Trump as vice president. On Jan. 20, 2029, Vance’s first inaugural address is two words: “I resign.” Donald 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.

[...]

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.

Trump can try for his third term all he wants, but he cannot legally be President for a 3rd term.

See Also:

No.

The 22nd Amendment explicitly states that "No person shall be elected to the office of the President more than twice...", so even if he didn't serve the full eight years of his two terms, a President who has won two elections is Constitutionally ineligible to win a third election.

It's technically possible for someone to serve more than eight years if they assumed the office and completed the unexpired term of their predecessor, as long as they hadn't served more than two years of that unexpired term. As an example, Lyndon B. Johnson succeeded to the Presidency upon the assassination of President Kennedy in November 1963 and completed the remainder of JFK's unexpired term -- 1 years, 59 days. LBJ was elected to a four-year term in his own right in 1964 and could have run for another four-year term in 1968, which would have given him a little over nine years in the White House, but he chose not to seek re-election.

On the other hand, Gerald Ford succeeded Richard Nixon in August 1974 upon Nixon's resignation. Ford completed the final 2 years, 164 days of Nixon's unexpired term. If Ford had won the 1976 election and served a four-year term of his own right, he would have been ineligible to seek re-election in 1980 because he had served more than two years of Nixon's unexpired term.

This quote is widely attributed to John Quincy Adams, though I haven’t been able to find the source. It’s probably the most ironic quote on the subject of voting ever, considering the circumstances of the 1824 election and how he became president. That year there were four candidates for president:  Andrew Jackson, a former US Army general who had served in both houses of Congress. John Quincy Adams, a former ambassador and Senator, and the current Secretary of State. He was also the son of John Adams, the second POTUS. William Crawford, a former Senator, Secretary of War, and the Current Secretary of the Treasury. Henry Clay, a seven term Congressman who had been elected Speaker of the House during his first term. Two other candidates, Smith Thompson and John C. Calhoun withdrew before the election. At the time, the candidates needed 131 electoral college votes to win. Clay carried three states and received 37 electoral votes. Crawford carried two states and received 41 electoral votes. Adams carried seven states with 84 electoral votes, and Jackson carried twelve states with 99 electoral votes. Jackson was also the winner of the popular vote. But none of the four candidates won enough electoral votes to win the presidency. As prescribed by the 12th Amendment, the election then moved to the House of Representatives, voting by state delegation with one vote per state. Choosing among the top three candidates, the delegations of thirteen of the 24 states in the union voted for Adams. 

tl;dr summary:

Herewith a somewhat reassuring article explaining that a Republican/Trump effort to circumvent a majority vote/Electoral College defeat scenario by throwing the election to the House won’t work.

Bush v. Gore

Point of Divergence: December 12th, 2000, Sandra Day O’Connor, Associate Justice of the US Supreme Court, and at the time the “median justice” (the justice closest to the political center), has an uncharacteristic bout of conscience, and sides with the four liberal justices.  The 5-4 decision upholds Florida’s Supreme Court decision, enabling the statewide manual recount to continue.

There is less than a week for the recount to take place; the electors of the Electoral College are scheduled to meet in their state capitals to cast their votes on the first Monday after the second Wednesday in December (yes, that’s the actual law, it’s arbitrary), which in this case is December 18th.  If the recount finishes in time, then whoever wins Florida wins the election.  If it goes for Bush, he wins 271-267.  If it goes for Gore, then he wins 292-246.  Chances are that given the tight timeline, the results would be discounted and ignored rather than certified, with both parties claiming fraud against the other.  (Gore would have won the recount, but politics is more art than science; facts don’t matter)

If Florida’s results are invalid, then Bush has 246 votes and Gore has 267.  Even though Gore has more, he doesn’t have a majority of 270 (so close, and yet so far).  Because neither party has technically won the General Election, a “Contingent Election” is automatically triggered by the 12th Amendment.  That means it’s up to Congress to decide.  On January 6th, the House and Senate will independently vote for President and Vice President respectively.  On top of this, they are totally free to disregard the popular vote results; all members of congress would vote along party lines.  The House votes as 50 state blocs instead of as 435 individuals, but either way, Republicans still win; at the start of the 107th Congress (2001-2003), they have a majority of votes in the House, and more importantly they have more than 26 statewide majorities, so they get more than 26 out of 50 votes (DC doesn’t get to vote in contingent elections because they have no representation in Congress; the system sucks).

George W. Bush is still elected President, despite having lost both the popular vote AND the electoral college.

Things go off the rails in the Senate, because for the first and only time in its history, it is tied dead even, 50-50.  In the Senate election, they vote as individuals, not as states, so they need 51 votes to win; neither Dick Cheney nor Joe Lieberman are elected Vice President.

Yet.

January 6th, 2001, Al Gore is still Vice President at this point, so he presides over the joint session, officially declares the November results to be inconclusive, and adjourns the session so the two chambers can cast their votes simultaneously.  The House picks a winner in one vote, Bush becomes President-elect immediately, but the Senate remains tied 50-50, so they have to keep voting for however long it takes to come to a decision.  The Contingent Election of 1801 took 36 votes over 7 days, and there were only 16 states back then, so in 2001 it’s a total slog.  This could lead to three realistic scenarios, and one outrageous scenario.

Realistic Scenario 1: The Democrats capitulate and vote for Dick Cheney to become Vice President so they don’t appear as obstructionist at the start of the new session of Congress.  This is what I think is the most likely scenario, which would lead to Bush and Cheney being in power in this timeline as in ours, same shit as always.  Nothing substantial has changed except now everyone in the country is even more pissed off about the 2000 election than they already were (odds of a “revolution” are slim; people would just have to die mad about it)

Realistic Scenario 2: Republican Senator Jim Jeffords votes against Dick Cheney and sides with the Democrats, creating a coalition government with Republican President George W. Bush and Democratic Vice President Joe Lieberman.  In our timeline, Jim Jeffords left the Republican party in May 2001, becoming an independent to caucus with the Democrats (fun fact: when he retired in 2007, his Independent seat was filled by Bernie Sanders), giving them a 51-49 majority against Bush for his first two years in office.  It’s entirely possible that Jeffords would vote against party in the contingent election and give it to the Democrats (not-so-fun-fact: Lieberman himself left the Democratic party in 2006 to become an Independent and endorsed John McCain in 2008, so were he to become Bush’s VP in 2001 he would probably just become a Republican anyway)

Realistic Scenario 3: Senate Democrats and Republicans refuse to cooperate, and the 50-50 tie continues.  No matter how many times they vote, it keeps resulting in a tie, so chances are they just stop voting altogether; if they can’t pick a Vice President by January 20th (inauguration day), then the office will remain vacant until President Bush can nominate someone to fill it.  He might try to renominate Cheney, but this would still require 51 votes in the Senate, so there’ no guarantee it would happen.  Scenario 3A has Democrats capitulating to confirm Cheney as Vice President once Bush has been sworn in, Scenario 3B has the Democrats and Jeffords voting against Cheney’s confirmation, leaving the Vice Presidency vacant until Bush picks a more moderate Republican to fill it.  In that case, he would almost certainly pick Senator John McCain to be Vice President; the Democrats would be more likely to confirm moderate McCain over conservative Cheney, and Bush would be recreating Ronald Reagan’s 1980 ticket; Reagan won the Republican nomination and chose his primary opponent George H.W. Bush as his running mate so as to unite the party.  In 2000, John McCain was George W. Bush’s primary opponent, so he might want to similarly unite the party.

Outrageous Scenario: okay, so the 12th Amendment states that in the event of a Contingent Election, quote, “the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice,” unquote.  A quorum is the minimum number of senators who must be present for a vote to be valid, in this case 67 (so 33 could be absent, and the election could continue; if 34 were absent, the election would be put on hold until one more senator arrived), but that’s not important.  What’s important here is that the amendment does not specify what happens in the event of a senate tie.  Up to this point, I’ve been working under the assumption that because the amendment only mentions senators, that only senators can vote in Contingent Elections.  In regular senate votes however, if there is a tie, the sitting Vice President can break it, so in theory it would be possible for Al Gore to cast the 101st vote and pick his running mate Joe Lieberman to be the Vice President under George W. Bush, 51-50, but the legality of this move is questionable at best.  The Supreme Court would almost certainly step in and make a ruling on the meaning of the text of the 12th Amendment.  It does NOT say that a Vice President can break a contingent election tie.  It DOES say that majority of senators is needed to win; a “majority of senators” does not include the sitting Vice President, because the Vice President is not a senator.  Given that conservatives have 5-4 on the Court, and that this entire scenario only happens if one of them hypothetically voted against party in the first place, they would almost certainly side against Gore here and say that his vote for Lieberman is invalid.  I don’t think Gore would do this anyway, but even if he did, it would be struck down, and we’d just end up with Scenario 3 instead.

Given how Congress works, even if the Florida recount had continued, it probably still would have resulted in a Bush presidency, though Cheney may or may not be in the picture.  If he is, we go down the same conservative hellhole as in our timeline, but if he’s not, then EVERYTHING would be different.

Bush was evil but stupid; Cheney was evil but SMART.  He was the one pulling the strings behind the scenes, he was the one in charge of the Iraq War.  It was never about terrorism, Cheney just capitalized on the timing of 9/11 to get his evil ball rolling; we went to war with Iraq in 2003 was so we could get rid of Saddam Hussein and install a US-friendly puppet to sell us Iraqi oil like the Saudis do.  Iraq didn’t have nuclear weapons, Iraq didn’t have ties to al-Qaeda or Osama bin Laden, the war was fought for exactly three reasons.  One, oil.  Two, military contracts (War is a Racket).  Three, Bush wanted to finish the job his daddy started (Bush Sr. pushed Iraq out of Kuwait in 1991, but didn’t topple Saddam, and he lost re-election in 1992, so Bush Jr. wanted to “fix” his family legacy by killing Saddam and becoming a two-termer).

If Dick Cheney never becomes Vice President, then Bush never gets his Iraq war; we’d still get stuck in Afghanistan, we’d still have no exit strategy, but no Iraq means no Syrian Civil War, which means no ISIS.  If Dick Cheney were not Vice President, ISIS would not exist!  Saddam would still be in charge of Iraq, but the region would be “““stable””” (which I put in as many quotes as possible; it would be RELATIVELY stable.  It would be stabler.)

Best Case Scenario, this version of Iraq would end up like Saudi Arabia.  The Saudis kill people, cut off heads, burns them alive.  They’re one of only 6 countries on Earth that admits they’re undemocratic; most undemocratic countries lie and say that they are, but the Saudis relish the fact that they are an absolute monarchy.  We’re only allies with Saudi Arabia because they’re willing to sell us oil, while we have to fight wars with everyone else in the region to get it (Let me be clear here; all my qualms are against the Saudi Royal Family, the government, not the Arab people themselves; Arabs are no more violent than any other ethnic group on the planet, and Islam is no more violent than Christianity.  I dislike the Saudi government, not the citizens. They’re just trying to live their lives in a totalitarian regime, the average Saudi Arabian citizen doesn’t like their situation any more than we do.  Don’t be racist; hate the dictatorship because it’s evil, not because it’s full of brown people) If Saddam were still alive, he would just be another dictator in the region, one more drop on the bucket, e pluribus unum.  The situation would be very bad, but fewer Iraqi civilians would have died (3000 people died in 9/11, we’ve killed well over 100,000 innocents. Men, women, children, civilians, non-combatants, friendlies, people, human beings)

Chuck Tanner and Devin Burghart at IREHR:

Far-right groups like the Third Term Project and Republicans for National Renewal are concocting a multitude of ways to keep Donald Trump in power. In April, the “official retail website” of the Trump Organization, the Trump Store, unveiled the latest version of its red MAGA hat, emblazoned with “TRUMP 2028.”[1] The hat is the latest nod to a blatantly un-Constitutional effort by the authoritarian-leaning President to seek a third term. The idea has been bandied about for some time by MAGA figures like Steve Bannon. While White House Press Secretary Karoline Leavitt coyly continues to hint at the possibility of a third-term effort, other far-right groups are actively pushing the cause. In the last few weeks, more than two dozen MAGA groups have either rebranded or formed with “2028” in their name.[2] Building on conspiracies of “stolen” elections and nefarious actors impeding the Trump agenda, far-right groups have concocted a multitude of schemes for Trump to stay in power. Let’s look at the various schemes and the groups behind them.

Scheme A: Amending the 22nd Amendment

The most popular scheme to keep Trump in power is a plan to amend the 22nd Amendment, allowing a president to serve three terms. The idea is the brainchild of Congressman Andy Ogles (R-TN). In January, he introduced a “House Joint Resolution to amend the Constitution of the United States to allow a President to be elected for up to but no more than three terms.” Ogles justified this action by citing Trump’s need for more time, “reversing our nation’s decay and restoring America to greatness.” Ogles’s examples of the regime’s first steps in this direction included Trump’s inhumane and unconstitutional attacks on immigrants and their due process rights, as well as the administration’s efforts to gut civil rights under the guise of having “broken the chains of DEI,” among other things.[3]

Far-right groups have started flocking to the Ogles effort. A recent Mother Jones article highlighted an effort to bring a Trump third term to fruition by the Third Term Project, a project led by Shane Trejo that emerged at last month’s CPAC convention. “Trump is the Caesar figure that America has needed.” Trejo declared. [...] Support for the Ogles effort also comes from the Republicans for National Renewal (RNR). This far-right nationalist group has featured speakers such as US Representatives Paul Gosar (R-AZ) and Marjorie Taylor Greene (R-GA), as well as anti-Muslim bigot and white nationalism fan Laura Loomer. A link on the Third Term Project page titled “Grassroots Resolution” connects to a petition hosted by RNR that “Supports a constitutional amendment, such as the one introduced by Rep. Ogles, to modify presidential term limits to allow for up to three terms in office.”[8] [...]

Scheme B: The Presidential Switcheroo

In addition to pushing Ogles’s 22nd Amendment change scheme, the Third Term Project is promoting the plan to have Trump run as Vice President, then ascend to the presidency after the inauguration.[10] If getting Congress to amend the 22nd Amendment’s two-term limit doesn’t take off, another scheme involves finding a loophole. The text of the 22nd Amendment bars anyone from being “elected” to a third presidential term, but says nothing about a person becoming president for a third term by some other route, such as by being elected vice president and then ascending back to the presidency through the death, resignation, or removal of the person at the top of the ticket. However, a prior Amendment addresses the unconstitutionality of the president-vice president switcheroo. Passed nearly 150 years before the 22nd Amendment, the 12th Amendment states that no one “constitutionally ineligible to the office of President shall be eligible to that of Vice President.” If Trump were ineligible to serve a third presidential term under the 22nd Amendment, they wouldn’t be eligible to become vice president under the 12th Amendment. [...]

Scheme C: An Article V Constitutional Convention

Suppose Congress fails to amend the 22nd Amendment, and the Supreme Court rules out the switcheroo scheme. In that case, far-right groups have been working for years on a backup plan to use the states to initiate a full-scale Constitutional Convention to rewrite the US Constitution to keep Trump in power. The Third Term Project also calls for an Article V Constitutional Convention, a gathering to amend the Constitution held by Congress when “two-thirds of both houses shall deem it necessary…or, on the application of the legislatures of two-thirds of the several states.”[11] [...]

Scheme D: Defy the Constitution

If the far right is unable to muster the votes for an Article V Convention, or a Congressional Amendment, or a Presidential switcheroo scheme, other ideas are percolating. There are likely new schemes to follow. Steve Bannon suggested in a recent interview that there are “four or five” options for a presidential third term that his group will be rolling out closer to the 2026 midterms.[28] Some far-rightists have decided that the corruption of judges and others in the “deep state” is just too deep, so it’s time to ignore the courts (and the Constitution). In the QAnon conspiracy world, some point to clues of Trump as “the Last President,” where he will maintain rule over the nation.[29] Tech NeoReactionaries, like Curtis Yarvin, see an opportunity to assert absolute executive power to move the country away from a Constitutional democratic republic to a Monarch/CEO system of control. Others, particularly in the paramilitary wing, continue to fantasize about a second Civil War if Trump is prohibited from running again.

Lisa Needham at Daily Kos:

The one thing that conservatives are excellent at is grabbing hold of the Overton Window and yanking it so hard to the right that we end up in the ditch.  But it’s not just right-wing politicians and activists who find ways to get their most unhinged and unacceptable ideas to the mainstream—some conservative attorneys and legal scholars are in on it, too, creating legal justifications for all of President Donald Trump’s blatantly unconstitutional moves.  The current project is to scrape up some historical and legal support for Trump’s increasing musings about serving a third term despite the 22nd Amendment clearly forbidding it.  But this is exactly what happened when Trump wanted to ignore the 14th Amendment and eliminate birthright citizenship, and when he wanted to ignore the Electoral College and stay in power after losing the 2020 presidential election. Since the effort to deform the 22nd Amendment to create a loophole for Trump to slide through in 2028 is relatively new, it doesn’t have as much fake support yet. Mostly, conservatives are stuck with a single Minnesota Law Review article by Professor Bruce Peabody, originally from 1999 and updated in 2016, that examines how a president could circumvent the 22nd Amendment’s bar on a third term.  To be scrupulously fair, this particular article predates Trump’s ambition to occupy the White House until death do us part, and it’s far more of a thought experiment than a political polemic. But it’s precisely those types of thought experiments that get laundered into conservative discourse as articles of faith.  It’s Peabody’s article, really, that launched the possibility for Trump to slide into a third term, thanks to a tortured and hyper-literal reading of the 22nd Amendment. 

The language of the 22nd Amendment forbids anyone from being “elected to the office of the president more than twice.” It does not, however, say that someone could not serve in the office more than twice, leading to complicated possibilities for Trump to remain in the White House. But this is nonsense. The 22nd Amendment was literally pushed by Republicans in the wake of Franklin Delano Roosevelt’s three full terms and part of a fourth. There’s no credible way to say that what was really intended by the 22nd Amendment was to generally bar more than two terms—unless someone really, really wants a third term.  But now conservatives have Peabody’s hypothetical explanation of how to slither through loopholes in the Constitution to help them make their case. 

[...] Fortunately for Trump, there are other soulless ghouls with better credentials who were happy to step up. Kurt Lash, a professor at the University of Richmond School of Law, rushed out an incomplete 8-page draft in late February, and he fleshed that out to a tedious 92 pages late last month.  University of Minnesota Law School Professor Ilan Wurman and Georgetown University Professor Randy Barnett took a different route, penning an op-ed for The New York Times to help launder these hard-right ideas into the mainstream.  But both of their arguments boil down to the same thing: The phrase “subject to the jurisdiction thereof” in the 14th Amendment means that “allegiance” to the United States is required, and undocumented immigrants can’t show allegiance because they broke the law by entering improperly. Therefore, their U.S.-born children are not U.S. citizens.  Lash, Barnett, and Wurman might be dressing up their theories in fancier ways, but they’re following the same tawdry playbook that Eastman used after the 2020 election, when he and Wisconsin attorney Kenneth Chesebro arranged to submit slates of fake electors to vote for Trump in states won by Biden.  The flimsy legal and historical support was dissimilar from the 1960 scheme when Hawaii sent electors for both John F. Kennedy and Richard Nixon, which only happened because a statewide recount stretched past the date for electors to cast their votes.