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

[Mulberry Heel]

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 so 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.

And I do not agree with your assessment. I take it that you are an originalist who does not believe in any interpretation of the Constitution beyond what is expressly written in it. Of course you can interpret the wording, based on the clear intent of the Amendment - do you dispute that the whole purpose of the amendment was to limit all future presidents to no more than two terms? - to legitimately argue that Trump cannot serve more than two terms under any circumstances. If that is not the case, then why are those scenarios you mention not in the wording of the amendment? You keep focusing on the word "elected", but none of the scenarios you describe are in the wording of the amendment either - so you are interpreting that they are acceptable ways around a president serving more than two terms.

 

[rodoheel]

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.

OK. What part of the text is the "anti-loophole" part that you're referring to? I thought it was largely meant to change the original procedure whereby there was no separate vote for VP and whoever finished 2nd in the presidential election was the VP.

 

[dukeman92]

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

They want desperately to feel as though they're better than SOMEONE. Surely we're better than the black/brown people.

 

[superrific]

OK. What part of the text is the "anti-loophole" part that you're referring to? I thought it was largely meant to change the original procedure whereby there was no separate vote for VP and whoever finished 2nd in the presidential election was the VP.

The last sentence saying that nobody constitutionally ineligible to be president can be vice-president.

 

[superrific]

And I do not agree with your assessment. I take it that you are an originalist who does not believe in any interpretation of the Constitution beyond what is expressly written in it. Of course you can interpret the wording, based on the clear intent of the Amendment - do you dispute that the whole purpose of the amendment was to limit all future presidents to no more than two terms? - to legitimately argue that Trump cannot serve more than two terms under any circumstances. If that is not the case, then why are those scenarios you mention not in the wording of the amendment? You keep focusing on the word "elected", but none of the scenarios you describe are in the wording of the amendment either - so you are interpreting that they are acceptable ways around a president serving more than two terms.

Actually, here he's being a textualist, not an originalist.

If you look at only the plain text in isolation, he's correct.

 

[Calheel]

They want desperately to feel as though they're better than SOMEONE. Surely we're better than the black/brown people.

There is probably 70% of the electorate that would never remotely consider crossing party lines because being a D or an R is as much a part of their identity as their religion, nationality, ethnicity, etc.

For the other 30% of persuadables, the economy is almost always the number 1 consideration. If the economy is good under Trump, then he or another R will win. If the economy is bad under Trump, then a D will win.

It doesn't matter how much someone hates someone else, if your personal economic situation has deteriorated (or if you perceive the economy has deteriorated) you will take it out on the party in charge -- even if you otherwise agree with their brown-hating views.

 

[Calheel]

Actually, here he's being a textualist, not an originalist.

If you look at only the plain text in isolation, he's correct.

Exactly. It is Mulberry who is trying to focus on what he believes the original intent of the 22nd must have been, not Rodo.

 

[Mulberry Heel]

Actually, here he's being a textualist, not an originalist.

If you look at only the plain text in isolation, he's correct.

Yes, but that still doesn't mean that it would allow Trump to do what he is arguing. Intention matters. His argument is that an amendment that is almost universally recognized as being designed to not allow a president to run for a third term in any circumstances actually doesn't mean that - that there are loopholes. If that is the case then the amendment would never have been ratified in the first place. So yes he may be correct "in plain text", but I believe that he is completely ignoring the greater meaning and intent and context of the amendment in favor of his very narrow interpretation.

 

[Mulberry Heel]

Exactly. It is Mulberry who is trying to focus on what he believes the original intent of the 22nd must have been, not Rodo.

So you believe that the 22nd Amendment allows a president to have a third term as well, in spite of its clear intent? I swear to god, I sometimes wonder why I even post on this board.

 

[rodoheel]

And I do not agree with your assessment. I take it that you are an originalist who does not believe in any interpretation of the Constitution beyond what is expressly written in it. Of course you can interpret the wording, based on the clear intent of the Amendment - do you dispute that the whole purpose of the amendment was to limit all future presidents to no more than two terms? - legitimately argue that Trump cannot serve more than two terms under any circumstances. If that is not the case, then why are those scenarios not in the wording of the amendment? You keep focusing on the word elected, but none of the scenarios you describe are in the wording of the amendment either.

You are absolutely incorrect about me being an "originalist."

I'm honestly not following your argument here. What scenarios are you saying should be in the amendment under my interpretation? My reading does not require any other "scenarios" besides the one in the text of the amendment: that you can't be elected president again (1) if you've already been elected twice, or (2) if you were elected once and also served at least half of another term. I understand your position to be that the 22nd bars Trump from ever serving as President again, no matter how he gets there. Which is fine; I understand that part. The question I'm asking you is when does that kick in? Does it mean Trump can't be elected vice president, period? Or that Trump can be elected VP, but couldn't succeed to the Presidency if he otherwise would (i.e. if the sitting President died, resigned, was impeached, etc)? And whichever the answer is, what is the basis for that answer?

Again, here is what the amendment says:

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.

If the intent was what you say it is - that someone who has already served two terms can't ever be President again - why doesn't the amendment just say this? I.e.:

No person shall serve in the office as President during more than two separate terms, except that any person who has held the office of President, or acted as President, for less than two years of a term to which some other person was elected President may serve in the office of President during two additional terms.

It's just a hard sell that the intent of the amendment was something different when it would have been easy for the amendment to say the different thing. Even the most liberal interpretation of the constitution doesn't allow for us to literally right new text that doesn't appear into the amendment. Even if we all think it would be a good idea for it to have the different text in it!

 

[rodoheel]

Yes, but that still doesn't mean that it would allow Trump to do what he is arguing. Intention matters. His argument is that an amendment that is almost universally recognized as being designed to not allow a president to run for a third term in any circumstances actually doesn't mean that - that there are loopholes. If that is the case then the amendment would never have been ratified in the first place. So yes he may be correct "in plain text", but I believe that he is completely ignoring the greater meaning and intent and context of the amendment in favor of his very narrow interpretation.

You are misconstruing my argument. Nowhere have I said Trump could run for a third term as president. What I'm saying is he could run for an office that it is in the presidential line of succession and then succeed to the presidency by a means other than being elected.

 

[336Heel]

There is probably 70% of the electorate that would never remotely consider crossing party lines because being a D or an R is as much a part of their identity as their religion, nationality, ethnicity, etc.

For the other 30% of persuadables, the economy is almost always the number 1 consideration. If the economy is good under Trump, then he or another R will win. If the economy is bad under Trump, then a D will win.

It doesn't matter how much someone hates someone else, if your personal economic situation has deteriorated (or if you perceive the economy has deteriorated) you will take it out on the party in charge -- even if you otherwise agree with their brown-hating views.

Doesn't matter how good or bad the economy is. Trump will tell them the economy is good. Facts don't matter to MAGA. They bought the lies the economy was crap in 2024. They'll buy the lies the economy is great in 2028.

 

[Calheel]

So you believe that the 22nd Amendment allows a president to have a third term as well, in spite of its clear intent? I swear to god, I sometimes wonder why I even post on this board.

I'm just describing your constitutional interpretation method, not what the 22nd actually means.

That said, I don't think you can just completely write the word "elected" out of the amendment. As Super pointed out, that word was added for a specific reason. I think there is a solid argument that the 22nd would permit someone to serve a third term if they do so through some other means, say as through Speaker of the House by succession.

In general, I don't think original intent is a good method of constitutional interpretation. First of all, whose intent? There are many, many different people involved in the drafting and ratification process. Second, how do you decide what all of those people actually intended? The words actually used in the amendment are pretty darn important in deciding what the language means. If the amendment were truly intended to bar anyone from serving a third term, it would have been easy enough to draft the amendment with that language.

 

[Mulberry Heel]

You are absolutely incorrect about me being an "originalist."

I'm honestly not following your argument here. What scenarios are you saying should be in the amendment under my interpretation? My reading does not require any other "scenarios" besides the one in the text of the amendment: that you can't be elected president again (1) if you've already been elected twice, or (2) if you were elected once and also served at least half of another term. I understand your position to be that the 22nd bars Trump from ever serving as President again, no matter how he gets there. Which is fine; I understand that part. The question I'm asking you is when does that kick in? Does it mean Trump can't be elected vice president, period? Or that Trump can be elected VP, but couldn't succeed to the Presidency if he otherwise would (i.e. if the sitting President died, resigned, was impeached, etc)? And whichever the answer is, what is the basis for that answer?

Again, here is what the amendment says:

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.

If the intent was what you say it is - that someone who has already served two terms can't ever be President again - why doesn't the amendment just say this? I.e.:

No person shall serve in the office as President during more than two separate terms, except that any person who has held the office of President, or acted as President, for less than two years of a term to which some other person was elected President may serve in the office of President during two additional terms.

It's just a hard sell that the intent of the amendment was something different when it would have been easy for the amendment to say the different thing. Even the most liberal interpretation of the constitution doesn't allow for us to literally right new text that doesn't appear into the amendment. Even if we all think it would be a good idea for it to have the different text in it!

How am I interpreting an amendment that was quite literally written to prevent a president from being elected to a third term - and to answer your question why would they have gone through the ratification process to provide a two-term limit if that was not the case? - if in fact it would still allow a president to have a third term anyway? No one has yet answered that question to any satisfaction. What you are arguing is that the 22nd Amendment really isn't a two-term amendment, because it only uses the word "elected" and thus it left loopholes than someone like Trump could exploit. And what I am saying is that simply defies common sense, because if that were the case there would have been no need for such an amendment in the first place. There would be no 22nd Amendment if those who created it intended for there to be the loopholes that you describe. The fact that there is no such wording in the amendment would clearly seem to indicate that it was not their intention that a president would try to get a third term through non-elective means. I think my position has actually been very clear, you simply don't agree with it, as is your right.

 

[superrific]

I swear to god, I sometimes wonder why I even post on this board.

Hey, hey now. The view put forth by rodoheel is not a crackpot theory. I'd say it's a minority position in the academic community (which is what I know best at the moment, and anyway it's mostly academics who have spent time thinking about this) but it's very much not fringe. It's absolutely an acceptable position. If you're just finding out about this now, take it as a learning experience. It's just not as crazy as you think.

 

[Mulberry Heel]

I'm just describing your constitutional interpretation method, not what the 22nd actually means.

That said, I don't think you can just completely write the word "elected" out of the amendment. As Super pointed out, that word was added for a specific reason. I think there is a solid argument that the 22nd would permit someone to serve a third term if they do so through some other means, say as through Speaker of the House by succession.

In general, I don't think original intent is a good method of constitutional interpretation. First of all, whose intent? There are many, many different people involved in the drafting and ratification process. Second, how do you decide what all of those people actually intended? The words actually used in the amendment are pretty darn important in deciding what the language means. If the amendment were truly intended to bar anyone from serving a third term, it would have been easy enough to draft the amendment with that language.

So why add the amendment at all then? Why go to the trouble of adding an amendment limiting a president to two terms if you are OK with them getting it via some other method? As I said earlier, that literally makes no sense.

 

[Mulberry Heel]

Hey, hey now. The view put forth by rodoheel is not a crackpot theory. I'd say it's a minority position in the academic community (which is what I know best at the moment, and anyway it's mostly academics who have spent time thinking about this) but it's very much not fringe. It's absolutely an acceptable position. If you're just finding out about this now, take it as a learning experience. It's just not as crazy as you think.

Maybe not crackpot, but it is certainly a minority viewpoint from what I've read, and is not the general interpretation of the amendment.

 

[Calheel]

So why add the amendment at all then? Why go to the trouble of adding an amendment limiting a president to two terms if you are OK with them getting it via some other method? As I said earlier, that literally makes no sense.

So you think it was just a mistake the drafters used the word "elected" -- even though they used the word repeatedly in the amendment? You just want to write the word out of the law because it makes no sense to you?

One argument for why the drafters would use elected over served (aside from the Truman concern raised by Super earlier) is that the electoral process could be corrupted by someone who had served two terms, such as FDR, such that it would not be a fair election. FDR arguably had an unfair incumbency advantage in his third and fourth elections and the thought could have been that other people should have a fair crack at winning the highest elected office. But as long as the election is fair and free, there is less concern about the same person serving as a president for a third term.

 

[superrific]

I'm just describing your constitutional interpretation method, not what the 22nd actually means.

That said, I don't think you can just completely write the word "elected" out of the amendment. As Super pointed out, that word was added for a specific reason. I think there is a solid argument that the 22nd would permit someone to serve a third term if they do so through some other means, say as through Speaker of the House by succession.

In general, I don't think original intent is a good method of constitutional interpretation. First of all, whose intent? There are many, many different people involved in the drafting and ratification process. Second, how do you decide what all of those people actually intended? The words actually used in the amendment are pretty darn important in deciding what the language means. If the amendment were truly intended to bar anyone from serving a third term, it would have been easy enough to draft the amendment with that language.

I think I've answered the "easy enough to draft" issue. It was complicated by application to Truman. That was the hangup, as I understand it. Nobody thought that there should be a loophole allowing a third term via the backdoor.

My position (in part) goes back to Marshall: it's a constitution we are expounding. We can't expect the same level of precision from the constitution, because it's so very difficult to amend and the constitutional provisions are meant to be long-lasting. We've never had too much of a problem accepting that "Congress shall make no law" didn't really mean NO LAW. We've mostly not had a problem recognizing that the commerce clause power goes beyond anything that can be plausibly described as a regulation of commerce (the test of "affects commerce" or "substantially affects commerce" is a justification -- nobody thinks that our drug laws are about commerce but that's how they've been interpreted). Even the conservatives admit that the commerce clause extends to things that aren't exactly commerce and aren't motivated by regulation of commerce.

I think one of the downsides of being a practicing attorney in this conversation and others is that your law practice makes you default to a textualist interpretive strategy. I can't imagine you've litigated many cases (if any) that involve intricate argument as to the meaning of constitutional text. Whether and how the constitution applies to your case, absolutely. But "how should we interpret the 22nd" just isn't the type of question that comes up often in practice, except possibly for Supreme Court advocates.

So you're approaching this the same way you'd approach a set of interlocking statutes or regulations. That's not necessarily wrong, but it's not necessarily right either. I would argue that it's less right in the constitutional context.

That said, if there's no grounding in text, we get stupid nonsense like state sovereign immunity.

This pertains to why Breyer was such a great justice, in my view. He was always able to see the balancing of interests presented by most cases, and rarely gravitated to an absolute position without warrant. He didn't have to post absurd hypotheticals like "what if the president left office, was indicted by a flawed grand jury process for political reasons, and then convicted despite doing nothing wrong" in order to see what was really at stake in a case.

 

[rodoheel]

So why add the amendment at all then? Why go to the trouble of adding an amendment limiting a president to two terms if you are OK with them getting it via some other method? As I said earlier, that literally makes no sense.

The Amendment was added to stop someone from being elected to the Presidency over and over, because that's what had just happened with FDR. They realized that they needed an amendment to formally enact what had been the informal practice - the "norm" if you will - throughout the history of the country. I do not think the drafters of the amendment considered that it would be a problem for someone who had already been elected president to be elected to another office in the line of succession - such as VP or Speaker of the House - both because (1) who would want to be VP or Speaker of the House after being President, and (2) who would agree to run as a figurehead with the intention of resigning in favor of someone further down the line of succession, which runs counter to pretty much all facets of human nature?

You seem to be interpreting my position as a belief that Trump should be able to use some convoluted method to get a third term. That is not my position. I would, in fact, be thrilled for the Supreme Court to interpret the amendment in the way you think it should be interpreted. I'm just not sure that interpretation can be credibly fit into the the way the amendment is written, as a matter of legal principle. This is not some Trumpworld BS theory, like some of their idiotic ideas about how Trump could actually get elected President again. It is absolutely a loophole - as I said I suspect the people drafting the amendment never considered that a scenario like this could be a problem. But loopholes, whether in a statute or amendment, usually have to be closed by editing them - not just by wishing the loophole out of existence because we think it would be better for it not to exist.

And again, you still have yet to say what the amendment actually prohibits - does it prohibit Trump from being elected to any other office in the line of presidential succession (not just being elected president itself), or does it mean he can be elected to those offices but not succeed to the presidency if he comes up in the line of succession? That's an extremely important question if you're talking about interpreting the amendment to prevent him ever being president again.