President Trump addresses members of the media while on Air Force One on Sunday.
Brendan Smialowski/AFP via Getty Images
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Brendan Smialowski/AFP via Getty Images
Once again, President Trump has raised the prospect of circumventing the constitutional limits on presidential terms by potentially seeking a third term, as his administration continues to push the boundaries of constitutional authority and executive power.
In an interview with NBC News, Trump stated he was “not joking” about the possibility and asserted that there are “methods” through which he could potentially serve a third term, yet he refrained from confirming to reporters aboard Air Force One on Sunday whether he will vacate the White House following his second term on January 20, 2029.
The 22nd Amendment explicitly prohibits anyone from being elected as U.S. president more than twice. This restriction was ratified by the states in 1951 following the contentious third and fourth terms of former President Franklin Roosevelt, which diverged from the precedent set by George Washington of a two-term limit.
Modifying presidential term limits through a new constitutional amendment would require backing from three-fourths of the states.
However, some legal analysts indicate there may be plausible routes to challenge the 22nd Amendment under extraordinary situations.
What Trump has indicated, alongside the 22nd Amendment
While Trump frequently generates news cycles with his unexpected comments, this is not the first instance where he has brought up the idea of pursuing a third presidential term.
“I doubt I will be running again,” Trump reportedly mentioned to a gathering of House Republicans last November after his election victory — he added, to laughter, that unless the lawmakers deemed him “good” enough to “figure” out a way.
Trump’s statement was met with immediate backlash from Democratic Rep. Dan Goldman of New York, who promptly introduced a House resolution reaffirming that the constitutional term limits for elected presidents are applicable to Trump and his non-consecutive terms.
The wording of the 22nd Amendment would dismantle any argument asserting that Trump’s non-consecutive terms provide him with an exemption from the two-term limit, asserts William Baude, a professor and head of the Constitutional Law Institute at the University of Chicago Law School.
“There is no flexibility,” Baude emphasizes regarding the rule that a president cannot be elected more than twice. “That is a clear directive from the Constitution, and I doubt any serious individual would interpret it differently.”
Just three days following Trump’s second inauguration, Republican Rep. Andy Ogles of Tennessee proposed a joint resolution to amend the Constitution to allow a person to serve as president three times if they had not been previously elected to two consecutive terms.
However, becoming president isn’t solely confined to winning elections. There are hypothetical scenarios regarding presidential succession, Baude points out, that are “not explicitly addressed” by the text of the Constitution, which reveal potential avenues to contest the common understanding of the 22nd Amendment’s presidential term limits in court.
One possibility: Trump could become vice president and then president in 2029
When asked by NBC News about a scenario involving Vice President Vance, Trump acknowledged “that’s one” method.
A 1999 Minnesota Law Review article titled “The Twice and Future President” discusses the concept that a twice-elected president could serve as vice president and subsequently reclaim the presidency if the current president were to be removed from office, resign, or pass away.
The official federal records regarding constitutional interpretations also suggest the possibility of a former two-term president serving as speaker of the House of Representatives or holding another federal position that could lead to the presidency through the Presidential Succession Act of 1947.
All of these speculative scenarios navigate a crucial term in the restriction of the 22nd Amendment — “elected.” Bruce Peabody, a coauthor of the aforementioned law review article and a professor of government and politics at Fairleigh Dickinson University, notes that Congress deliberately chose that language after exploring alternatives that would have rendered a twice-elected president ineligible to “hold” the office again.
“It is clear that there was an awareness that the more specific language they ultimately adopted would not encompass every conceivable scenario,” explains Peabody, noting the challenges in interpreting the lawmakers’ intent.
However, their choice of words has led to what Brian Kalt, a law professor at Michigan State University who examined the hypothetical situation of a two-term president being nominated for vice president in Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies, refers to as a loophole in the 22nd Amendment’s two-term limit.
Dwight Eisenhower, the first sitting U.S. president constitutionally barred from seeking a third term, hinted at this in 1960.
When asked if he wanted to formally express support for then-Vice President Richard Nixon as the Republican presidential nominee, Eisenhower garnered laughs at a press conference when he responded: “You know, the only thing I know about the presidency the next time is this: I can’t run. But someone has raised the question that were I invited, could I constitutionally run for vice president, and you might find out about that one. I don’t know.”
In the years following, similar discussions surrounding this loophole have emerged in legal and political circles concerning other two-term presidents, including Ronald Reagan, Bill Clinton, and Barack Obama.
“Such talk has never been taken too seriously. However, under certain circumstances where a president holds greater popularity than the accepted interpretation of the Constitution, one can expect people to seize any loophole that enables that person to bypass term limits. We’ve seen this in other nations. Wherever term limits exist, vulnerabilities arise,” Kalt asserts.
Nonetheless, other legal scholars point to the last sentence of the 12th Amendment, which pertains to the Electoral College, as a barrier for any two-term president attempting to return to the White House via the vice presidency. It states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
Yet, in a court of law, an attorney might contend that the sole presidential eligibility criteria stated in the Constitution are being a “natural born” citizen, at least 35 years old, and a resident of the U.S. for at least 14 years, according to Stephen Gillers, a professor emeritus at New York University School of Law, who proposed in 2004 that Clinton run for vice president.
“I want to clarify that I’m presenting an argument that Trump could make in order to regain access to the White House. I do not endorse it,” Gillers emphasizes. “However, we know from experience that even if it’s improbable, and it offers the prospect of a third presidential term, Trump will pursue it. If he remains healthy, he will assert that he enjoys the job. Whether or not it prevails in court is another question.”
Gillers speculates that Trump “could strike a deal” with Vance that, prior to the 2028 election, they would swap roles on the Republican ticket, and if they reclaim the White House, Vance would resign, allowing Trump to become president.
To remove any ambiguity regarding whether the 12th Amendment prohibits presidential electors from selecting a twice-elected president for the vice presidency, Gillers proposes an alternative arrangement wherein Trump wouldn’t run on the victorious Republican ticket, but after the newly elected vice president resigns, he could assume the vice presidency with congressional approval.
“It’s not implausible. The mere existence of this possibility over the next four years provides Trump with leverage that fortifies his position,” Gillers notes. “Congress members in 2027 will recognize they’re not necessarily dealing with a lame duck, as Trump could maintain the potential of a return to power, which enhances his influence over Congress.”
What would the U.S. Supreme Court’s response be to any third Trump term ventures?
Another straightforward possibility some constitutional scholars have not dismissed is Trump pursuing a third presidential term despite the stipulations of the 22nd Amendment.
“The 22nd Amendment assumes adherence to the Constitution,” observes Gloria Browne-Marshall, a constitutional law professor at John Jay College of Criminal Justice. “However, if one decides not to follow the Constitution, what’s inscribed there becomes irrelevant.”
Any effort towards a third Trump administration would likely incite lawsuits leading to deliberations before the U.S. Supreme Court. In the current highly polarized political arena, predicting how the court’s conservative supermajority might rule is challenging, contends Aziz Huq, a constitutional law professor at the University of Chicago Law School, who has concentrated on democratic backsliding.
“The court has methods to sidestep the 22nd Amendment issue. Should the court avoid addressing the question, it will fall to other entities — perhaps at the state level during nominations and primaries or Congress when determining the winner of the Electoral College — to ascertain whether the 22nd Amendment is enforceable,” Huq explains.
Browne-Marshall warns that testing the limits of the Constitution’s presidential term restrictions could lead to increased instability within the U.S. political framework at a moment when both the courts and Congress’s ability to serve as checks against presidential overreach is questioned.
“I don’t foresee everyone idly standing by while he attempts to ascend to a kingly status without resistance,” Browne-Marshall states. “We may rely heavily on ordinary citizens if the other two branches of government fail to maintain their check and balance roles.”
The timing of Trump’s latest remarks — occurring more than three years before the 2028 election — opens the door to the possibility of a new constitutional amendment that could conclusively obstruct a potential third term for Trump, points out Peabody, the Fairleigh Dickinson University professor.
“The nation is being alerted, and it holds the power to take action if this potential becomes undesirable,” Peabody concludes.
Edited by Benjamin Swasey
