Donald Trump Hints At Constitution-Breaking 3rd Term As President

[superrific]

How would you challenge it? After the Colorado case, I’m not sure how you’d get five justices to agree that state election boards could make the call.

Well, I share that concern. I think we can both agree that the election board would have an easier case. Let's start from basic principles.

1. Surely election boards can enforce 35 year old natural born citizen, right? I think the Supreme Court said as much, though I didn't read that opinion very closely. That's because (at least in part) that requirement is not subject to any significant fact-finding. Either the person is 35 or not. So it doesn't fall to an election official to determine what is, or isn't, an insurrection. In addition, for those other clauses, there's no question of whether they are self-executing and we don't have that "Congress can change this" issue as in the 14th.

2. I would think, for the 22nd, that election boards would be expected to make the call as to the president. Again, it's such a trivial determination as to be ministerial. If ever there is a role for an election board in this context, it would be weeding out the candidates who are objectively not qualified.

3. So then we have the VP workaround issue. I would argue that this is more like the 35 year old requirement, in that it requires no fact-finding. Either the person has or hasn't been elected twice -- and perhaps no determination would be easier for a court to make than that one, LOL. Maybe gravity.

Sure, the law here is uncertain. But that can be resolved by a Supreme Court decision interpreting the 22nd and 12th. If the Supreme Court says, "nope, can't do it" then election boards everywhere can.

The problem in the insurrection case was the prospect of the Supreme Court having to review these determinations over and over again because the disablement is not objectively defined. You know a state like Texas would try to disqualify Biden or a Dem under the idea that they have encouraged an "invasion." And it would eventually go to the Supreme Court, and the Supreme Court would have to decide the case on its facts, and that's messy for everyone. Of all the Trump election cases, the outcome in that one was the most sensible and I think I agreed with it at the time.

4. So I can't think of any reason why the issue would be non-justiciable. Obviously Congress wouldn't have to act to enforce it (it is very clearly self-executing) or even define it. So why wouldn't a court be competent?

 

[superrific]

People love money WAY more than they hate other people.

This is absolutely not true.

It is true of some people. Hopefully most people. But clearly not all. How else to explain Alabama or Mississippi -- states that are constantly poor, always under Republican leadership, that make very little effort to get better?

And of course there's the famous LBJ quote about convincing the lowest white man that he's better than the highest black man. Unless we think LBJ was full of shit, that seems to describe people hating people more than loving money.

 

[Calheel]

This is absolutely not true.

It is true of some people. Hopefully most people. But clearly not all. How else to explain Alabama or Mississippi -- states that are constantly poor, always under Republican leadership, that make very little effort to get better?

And of course there's the famous LBJ quote about convincing the lowest white man that he's better than the highest black man. Unless we think LBJ was full of shit, that seems to describe people hating people more than loving money.

Nothing is true of all people.

 

[Mulberry Heel]

This is absolutely not true.

It is true of some people. Hopefully most people. But clearly not all. How else to explain Alabama or Mississippi -- states that are constantly poor, always under Republican leadership, that make very little effort to get better?

And of course there's the famous LBJ quote about convincing the lowest white man that he's better than the highest black man. Unless we think LBJ was full of shit, that seems to describe people hating people more than loving money.

I agree with that for the most part, but most of the poor people in those states also have food stamps, Medicaid/Medicare, Social Security, etc. to at least eke out a meager living. What will happen to them if Republicans abolish or make deep cuts to those programs? How will they get by then?

 

[superrific]

Nothing is true of all people.

True. But it's unclear whether it's true of most people. Plenty of empirical evidence suggests otherwise.

 

[Calheel]

Well, I share that concern. I think we can both agree that the election board would have an easier case. Let's start from basic principles.

1. Surely election boards can enforce 35 year old natural born citizen, right? I think the Supreme Court said as much, though I didn't read that opinion very closely. That's because (at least in part) that requirement is not subject to any significant fact-finding. Either the person is 35 or not. So it doesn't fall to an election official to determine what is, or isn't, an insurrection. In addition, for those other clauses, there's no question of whether they are self-executing and we don't have that "Congress can change this" issue as in the 14th.

2. I would think, for the 22nd, that election boards would be expected to make the call as to the president. Again, it's such a trivial determination as to be ministerial. If ever there is a role for an election board in this context, it would be weeding out the candidates who are objectively not qualified.

3. So then we have the VP workaround issue. I would argue that this is more like the 35 year old requirement, in that it requires no fact-finding. Either the person has or hasn't been elected twice -- and perhaps no determination would be easier for a court to make than that one, LOL. Maybe gravity.

Sure, the law here is uncertain. But that can be resolved by a Supreme Court decision interpreting the 22nd and 12th. If the Supreme Court says, "nope, can't do it" then election boards everywhere can.

The problem in the insurrection case was the prospect of the Supreme Court having to review these determinations over and over again because the disablement is not objectively defined. You know a state like Texas would try to disqualify Biden or a Dem under the idea that they have encouraged an "invasion." And it would eventually go to the Supreme Court, and the Supreme Court would have to decide the case on its facts, and that's messy for everyone. Of all the Trump election cases, the outcome in that one was the most sensible and I think I agreed with it at the time.

4. So I can't think of any reason why the issue would be non-justiciable. Obviously Congress wouldn't have to act to enforce it (it is very clearly self-executing) or even define it. So why wouldn't a court be competent?

But then the next question is could you get five justices to agree with your interpretation in a case involving Trump?

 

[Calheel]

True. But it's unclear whether it's true of most people. Plenty of empirical evidence suggests otherwise.

The two issues overlap. The most virulent racists tend to be the most poor.

 

[superrific]

I agree with that for the most part, but most of the poor people in those states also have food stamps, Medicaid/Medicare, Social Security, etc. to at least eke out a meager living. What will happen to them if Republicans abolish or make deep cuts to those programs? How will they get by then?

I'm not saying that there won't be a backlash. I think there will be. I just wouldn't state it so categorically. Also, I'm a believer in the declining marginal utility of money, which suggests that the truth depends on the person's income. I agree that most people, perhaps almost all, prefer being able to eat dinner over hating others. But what about buying a new car (new for them)? A new TV?

 

[rodoheel]

The 22nd Amendment was written and pretty much universally recognized as an amendment that was specifically designed to limit a president to two terms, period. The fact that the wording says "elected" does not change the intention of the amendment. You are the one who is "retroactively" trying to argue that the people who wrote the amendment and got it through the ratification process would somehow be okay if a president schemed his way into a third term anyway - despite such allowances not being written in the amendment. If that is not the case, then why was the amendment created in the first place? Why would a group ratify an amendment clearly limiting a president to two terms when they would be okay with a president finding some other way to stay in office? It literally makes no sense.

And if you want to argue about "stretching the wording" where is it written in the amendment that the scenarios you have described are allowed? If they were okay with a two-term president finding another way to stay in office, then why is that wording not in the amendment? And even better - why did they go to the trouble in the amendment of adding the wording that "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." So it is worded that a president could not be elected for more than two terms, and that someone who takes their place more than two years into their term cannot be elected more than once. For people who were apparently OK with a president finding a non-elected way to stay in office, they certainly went out of their way to make sure that even a successor would be limited in how long they can stay in office.

I'm not disputing the logic of what you think the Amendment should mean. I'm disputing what the Amendment says. Trumpworld is full of absolutely absurd, spurious legal arguments that stretch the text of constitutional provisions, statutes, etc beyond nay rational belief. But this is not one of those situations, IMO. The Amendment says what it says.

BTW - you didn't actually answer my question. Are you saying Trump can't even run as VP, period? Can he run for the House and be elected Speaker of the House? Or are you saying he can be elected to those other positions, but would have to be skipped in the normal succession order because he's already been President twice?

 

[rodoheel]

It is my position, under the 12th-22nd interplay, that Trump cannot be elected VP. He can succeed to the presidency from any other office on the line of succession, and he could be appointed VP and then take the presidency if the president then resigned.

The issue about the VP qualifications comes from the 12th, not the 22nd.

Help me out - explain the logic as to why the 12th means Trump could not be elected VP. (Not trolling, I honestly am trying to understand the argument that the 12th prevents Trump from being elected VP.)

 

[rodoheel]

I think this is right. Plus I think the GOP is going to get its ass handed to it in 2026 midterms.

I hope this is right, but the whole point of the current Trump admin is to arrogate so much power to the Presidency that Congress is rendered irrelevant anyway.

And in any event Dems wresting back control of Congress will be useless if they refuse to abolish or heavily overhaul the filibuster. Not to mention Trump's veto power.

 

[Mulberry Heel]

I'm not disputing the logic of what you think the Amendment should mean. I'm disputing what the Amendment says. Trumpworld is full of absolutely absurd, spurious legal arguments that stretch the text of constitutional provisions, statutes, etc beyond nay rational belief. But this is not one of those situations, IMO. The Amendment says what it says.

BTW - you didn't actually answer my question. Are you saying Trump can't even run as VP, period? Can he run for the House and be elected Speaker of the House? Or are you saying he can be elected to those other positions, but would have to be skipped in the normal succession order because he's already been President twice?

Yes, I am saying that the Amendment would not allow Trump to run again under any circumstances, including those you describe. If it did then it would be in the wording of the amendment. And you have yet to answer my question as to why the amendment would have been created in the first place if it was intended that there would be the exceptions you describe. Again, you taking the literal wording to mean that is acceptable for Trump to somehow stay in office despite not being elected. What I am arguing is that is not the case as it clearly violates the intention of the entire amendment, irregardless of the "elected" wording you keep obsessively focusing on.

 

[hedge]

Can he run for the House and be elected Speaker of the House?

I don't think he has to be a House member to be voted Speaker of the House. That one might throw a kink in things if that came to pass and then the prez and VP died...

 

[superrific]

But then the next question is could you get five justices to agree with your interpretation in a case involving Trump?

I mean, this is basically asking, "will the Supremes put Trump above the law." And maybe they will, but if so, it won't be because of the merits of the case.

Well, I guess you're referring to my interpretation of the 22nd-12th, not just the justiciability of the question (which I think the Court would have no question but to uphold). Obviously I don't know the answer but I don't think Trump v. Anderson would be all that relevant. The cases are sufficiently different as to be readily distinguishable. If the Court wants to cabin the 22nd, it might do so for its own reasons.

It's also entirely possible that the Supreme Court will be fucking sick and tired of Trump. He's already consumed a lot of their docket. The impeachment talk isn't helping. He's going to be consuming a lot more of their docket, and these are hard cases for the Justices to rule for Trump. They might do so, for partisan and/or ideological reasons, but Trump is presenting them with the worst optics and the worst facts. This will go on and on. I could see Kav or ACB or both saying, "fuck this. I wasn't put on this court to carry water for Donald Trump three or four times per term."

 

[rodoheel]

This is absolutely not true.

It is true of some people. Hopefully most people. But clearly not all. How else to explain Alabama or Mississippi -- states that are constantly poor, always under Republican leadership, that make very little effort to get better?

And of course there's the famous LBJ quote about convincing the lowest white man that he's better than the highest black man. Unless we think LBJ was full of shit, that seems to describe people hating people more than loving money.

I think the truth is somewhere in the middle. The situation of Mississippi. Alabama, etc says more about the ability of a relatively small number of people who are in power, and are rich, to use their power, propaganda, etc to keep their populace uniformed and/or misinformed than it does about whether the voters love money or hate other people more.

 

[Mundial]

"This is all 4D chess to get the republicans to allow us to run Obama for a third term."

This except that someone else would have to run as the Democratic Presidential candidate (e.g., Any Beshear, Gavin Newsome) and Obama as VP, with the option that the Pres could resign and transfer power to Obama or Obama could basically govern through them (e.g., such as Nancy Regan, DIck Cheney).

 

[Mulberry Heel]

I'm not saying that there won't be a backlash. I think there will be. I just wouldn't state it so categorically. Also, I'm a believer in the declining marginal utility of money, which suggests that the truth depends on the person's income. I agree that most people, perhaps almost all, prefer being able to eat dinner over hating others. But what about buying a new car (new for them)? A new TV?

I agree with that, certainly when it comes to something like purchasing a new car over a used one. All I'm saying is that if the GOP carries through with these drastic cuts to the federal social safety net then poor people in states like Mississippi and Alabama are going to be in dire straits to a much greater extent than they are now, or have been in decades.

 

[rodoheel]

Yes, I am saying that the Amendment would not allow Trump to run again under any circumstances, including those you describe. If it did then it would be in the wording of the amendment. And you have yet to answer my question as to why the amendment would have been created in the first place if it was intended that there would be the exceptions you describe. Again, you taking the literal wording to mean that is thus acceptable for Trump to somehow stay in office despite not being elected. What I am arguing is that is not the case as it clearly violates the intention of the entire amendment, irregardless of the "elected" wording you keep obsessively focusing on.

To be clear, I am not saying that Trump can "stay in office" as President. I am saying that by my reading, the 22nd does not prevent Trump from being elected VP (as opposed to being elected President) then taking over as President if he otherwise would succeed to the presidency as VP. Any argument that Trump can be elected president again is, IMO, obviously wrong. Trumpworld has put out several theories to that effect and I find them all to be hogwash.

The "elected wording" is the wording. It is what the amendment says. I didn't choose that wording, but I can read it. I know of no better way to read the wording of constitutional amendments than "literally." The interpretation of any amendment, like a statute, has to start with the text. We're not allowed to disregard the text because we wish it said something else or think it should mean something other than what it says. Again, it would have been very easy to make it say that no person could serve more than two terms (or serve more than half of more than two different terms). It does not say that. I am not disputing your logic that to effectuate its intent and purpose, it would be better if it said something different.

IMO there is simply no way to read the text of the 22nd as not only saying that you can't be elected President twice, but also that you can't be elected as VP if you are otherwise ineligible to be elected President. Even super is looking to the 12th, not the 22nd, to find a basis for that, and he still says that Trump could be speaker of the house and then succeed to the presidency from there through the line of succession.

 

[superrific]

Help me out - explain the logic as to why the 12th means Trump could not be elected VP. (Not trolling, I honestly am trying to understand the argument that the 12th prevents Trump from being elected VP.)

The 12th is an anti-loophole provision. It was the young Republic's way of saying, "don't take advantage of the way we're splitting the VP and presidential tickets." The VP-to-Pres path is clearly a loophole.

Remember: courts have never been terribly insistent that the constitution be interpreted according to its plain language. Fuck, this Court isn't terribly concerned with whether a provision is even in the constitution at all -- but regardless, the plain text doesn't control the way it would for a statute. That goes back to Marbury v. Madison. So it's not self-evident that you can just cram a sneaky system in place and evade the requirements. That said, this is a court that blessed the trick to avoid judicial review of the 14th, so I'm not making predictions about what it would do so much as stating my own informed view.

In terms of this Court: I think the X factor here is tradition. That hasn't stopped a couple of the right-wingers adopting ridiculous positions (e.g. independent state legislature theory), but in general, the fact that nobody has ever thought the president should serve more than two terms in any way would support this interpretation. FDR was the first to run a third time, IIRC, and immediately after his term was over (basically), Congress and the states put in an Amendment that sure seems like a codification of that long-standing tradition rather than an effort to change the status quo. And in this case, it's a decent argument. It wouldn't be the one I would principally rely on, but it's helpful.

 

[336Heel]

I really don't think we need to worry about a third term for Trump. For one thing, he'll be 82-83 -- and he's already been slipping. Second, his approval rating will be in the 20s. The GOP will be trying to run away from him, not embrace him. No way they are going to orchestrate some special plan to keep him on the ticket only to get killed in the election.

No way the GOP will run from him. If they haven't already run from him they never will. All they care about is owning the libs and remaining in power no matter what it costs them/the country.