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A Vox reader writes: “Trump can’t run for a third term, right? (Yes, we know what the Constitution says … but he really, truly can’t run for a third term, right??)”
President-elect Donald Trump has won his second — and final — term in office.
While Trump has joked about pursuing a third term and has a penchant for promoting authoritarian ideas, he’s barred from running again by the 22nd Amendment of the US Constitution. To run for a third term, he’d have to repeal that amendment, and that would be difficult. Undoing a constitutional amendment requires an overwhelming level of support from Congress and state legislatures, support he would be unable to obtain.
When asked if there were legal loopholes or other ways for a president to get around the 22nd Amendment, Stanford University law professor Michael McConnell, a specialist in constitutional law, had a definitive answer.
“No. There are none. This will be his last run for president,” McConnell told Vox.
What the 22nd Amendment says
The 22nd Amendment firmly limits presidents to two successful runs and applies equally to those elected to consecutive terms and those, like Trump, who are elected to nonconsecutive terms. It states the following:
“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 amendment was ratified in 1951 and came after years of both parties calling for term limits for the presidency.
While President George Washington set a precedent for only holding two terms in office, President Franklin D. Roosevelt later became the first and only commander-in-chief to serve additional terms. Roosevelt was ultimately elected to four terms in office, though he passed away during his last term in 1945.
Following Roosevelt’s tenure, there were growing calls to establish term limits for future presidents, leading to Congress’s approval of the 22nd Amendment and states’ subsequent ratification.
Why it’s so hard to roll back the 22nd Amendment
The thresholds for approving a constitutional amendment and for repealing it are exceedingly high.
There are two ways to go about rolling back an amendment. The first would require two-thirds of both the House — 290 members — and the Senate — 67 members — to agree to do so. Once they did so, three-fourths of all states — 38 — would then also have to agree.
These thresholds would be impossible for Trump to meet given Democratic opposition, and there would likely be some Republican outcry as well. While Republicans are poised to retake Senate control, they’ll fall far short of the two-thirds majority required for such a vote. If the GOP attains control of the House, they’d similarly fall far short of the two-thirds majority needed there. Additionally, at least 17 states have voted for Vice President Kamala Harris, signaling that they’d be unlikely to support any such amendment. That’s more than the one-fourth of states Trump could afford to lose should he somehow succeed in getting the amendment overturned by Congress.
A second means of repealing an amendment would require holding a Constitutional Convention, which two-thirds of states — 34 — would have to support. Any amendments proposed at such a convention would still need ratification from three-fourths of states — 38.
This option would face the same opposition from Democrat-leaning states as the first one.
Since the amendment was first approved, there have been numerous proposals in Congress raised to repeal it, though they have all languished due to lack of support.
The amendment is crystal clear
Experts say there aren’t really any realistic options for Trump to try to bypass the 22nd Amendment.
Theoretically, the 22nd Amendment doesn’t prevent a former president who has already served two terms from becoming vice president in a subsequent term. As vice president, that person could then potentially ascend to the presidency if the president on the ticket stepped down.
“It could theoretically happen, but it isn’t going to happen,” says McConnell, who added that it’s a “silly thing to worry about.”
Efforts to challenge the amendment in court are also moot.
The Supreme Court does not have the basis to overturn the 22nd Amendment, according to legal experts.
Per UCLA law professor Adam Winkler, any challenge to a constitutional amendment would likely rest on arguments that the procedure used to approve the amendment was faulty in some way.
That’s “impossible” in this case, says Winkler, given how this amendment has been settled for more than seven decades.
Winkler notes the Supreme Court could try to interpret the 22nd Amendment to say that it only applies to presidents who have served consecutive terms, but even that would be a stretch based on its text. Any effort to declare the amendment unconstitutional by the Court would run into the problem of the amendment being part of the Constitution, notes McConnell. “By definition, the Constitution cannot be unconstitutional,” he says.
Overall, as Georgetown law professor Abbe Smith explained when asked if Trump could vie for a third term, it’s pretty simple: “Short answer: There is no way.”
As such, Trump’s recent run is set to be his final one.
