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

[Mulberry Heel]

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.

It makes "sense" to me, but I think it is straining at gnats to argue that somehow the people who wrote the amendment only wanted to limit presidents from being elected to more than two terms but were somehow OK with them finding another way to do it. As I have said, I simply don't find that argument logical. And another argument for why they did not include the word "served" instead of "elected" might be because they did not think that anyone in the future would try to use a backdoor method of remaining in office and so thought that the word elected would suffice.

 

[Calheel]

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.

I'm not arguing for a textualist interpretation -- say like a contract. Generally, I think textualists produce some of the worst constitutional analysis.

But, you can't simply write words out of the constitution. When the amendment says "elected" rather than "served" -- there needs to be meaning afforded to that word choice. Mulberry interprets the 22nd as effectively using the word "served" rather than elected because he cannot understand why any rational person would limit the 22nd to just elections.

 

[rodoheel]

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.

I'd love to read academic literature on this question. Do you have any recommendations?

 

[Calheel]

It makes "sense" to me, but I think it is straining at gnats to argue that somehow the people who wrote the amendment only wanted to limit presidents from being elected to more than two terms but were somehow OK with them finding another way to do it. As I have said, I simply don't find that argument logical. And another argument for why they did not include the word "served" instead of "elected" might be because they did not think that anyone in the future would try to use a backdoor method of remaining in office and so thought that the word elected would suffice.

Then why not just write "served"? You cannot honestly believe that the two terms are synonymous or that no one thought through this issue at the time.

 

[rodoheel]

And another argument for why they did not include the word "served" instead of "elected" might be because they did not think that anyone in the future would try to use a backdoor method of remaining in office and so thought that the word elected would suffice.

I actually agree with this! (But again, "remaining in office" is the wrong term, because it would literally mean leaving the office as President, being sworn in as VP, and then having to succeed to the presidency by some other means through the line of succession.)

But back to what you say about the drafters not believing someone would do this in the future: If that's true, I would say it's evidence that the amendment doesn't mean what you say. They didn't use "serve" instead of "elected" because they didn't think it would be an issue for someone to succeed to the presidency through non-electoral means. They may not have considered the possibility that some other person could get elected as president and voluntarily step down so that the former Pres could go back to being president again. That absolutely is a "loophole" that we would be wise to close! I'm just not sure it can be closed by judicial decree without actually changing the text of the amendment (well, passing a new amendment I guess).

 

[dukeman92]

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.

Eh?
Most people are too dumb to understand how to measure a strong economy. Case in point, our last election.

 

[Calheel]

Eh?
Most people are too dumb to understand how to measure a strong economy. Case in point, our last election.

I said people love money more than they hate other people. I didn't say they were economic geniuses.

Inflation, as a theoretical concept, should be economically neutral. Prices go up but so do wages. But from a political point of view, inflation is a killer. The voters are very price sensitive. Doesn't matter if GDP is 3% if egg prices are $5 a carton. And even though inflation had subsided by 2023, Biden paid the price.

 

[superrific]

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.

1. Sometimes laws exist for the purpose of creating friction. You could argue that Congress wanted to prevent an incumbent from just running for a third term, since that's so easy. The calculus for the VP gambit would be different: arguably, the people would have to REALLY want the president to serve a third term in order to justify the whole "vote for some other person first, and hope that person resigns as promised" -- not to mention the political difficulty of finding someone seemingly loyal enough not to welch on the agreement after being sworn in.

2. The history is complicated by the context. Amazingly, the 22nd Amendment appears not to have received much popular attention. It looked for a time that it would slip in without much comment at all, but it did attract some attention -- but not nearly enough as a constitutional amendment normally would (compare, for instance, the ERA). That's almost certainly because, in 1947, we were still dealing with the aftermath of WWII and the Depression and this seemed like a pretty minor thing all things considered.

So that helps explain the drafting choices. It doesn't tell you how to interpret them. That's a harder question. I don't think the argument from absurdity works.

 

[superrific]

I'd love to read academic literature on this question. Do you have any recommendations?

I don't remember the articles. I would have to look. I don't have westlaw any more so it's harder. I can probably remember if I put some time into it.

 

[Mulberry Heel]

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.

I thought I had answered that question earlier - Trump, even if he were elected or appointed to an office in the line of succession, could not become president even if the position became vacant. And strangely enough you are now echoing my argument in some ways. I have been arguing exactly what you posted - that "the people drafting the amendment never considered that a scenario like this could be a problem", so that is why the word "elected" was used instead of something like "served." And that their clear intent was that no president should get more than two terms, period. Your argument that the Supreme Court or other federal courts may not see that way is something I don't disagree with, as god knows this Supreme Court has already made some head-scratching rulings. I have no problem seeing a majority of them favoring the view you hold. My point is that the clear intent of the 22nd Amendment is that no president should get more than two terms, period, and that it was not meant to imply that one could become president via other methods - otherwise the amendment would not exist. Whether that stands up in a court of law is obviously a very different question.

 

[superrific]

I actually agree with this! (But again, "remaining in office" is the wrong term, because it would literally mean leaving the office as President, being sworn in as VP, and then having to succeed to the presidency by some other means through the line of succession.)

But back to what you say about the drafters not believing someone would do this in the future: If that's true, I would say it's evidence that the amendment doesn't mean what you say. They didn't use "serve" instead of "elected" because they didn't think it would be an issue for someone to succeed to the presidency through non-electoral means. They may not have considered the possibility that some other person could get elected as president and voluntarily step down so that the former Pres could go back to being president again. That absolutely is a "loophole" that we would be wise to close! I'm just not sure it can be closed by judicial decree without actually changing the text of the amendment (well, passing a new amendment I guess).

I think the law is that if the president-elect dies between the election and inauguration day, the Vice-President becomes the presidential elect. Presumably that applies to resignations as well.

So I'm not sure the president would actually have to leave office. Trump could run the same ticket -- Vance/Trump -- and expect Vance to yield. And if Vance didn't yield, Trump could just have him killed (though it's unfair to impart the degenerate holding of Trump v. US to the folks who worked on the 22nd).

This hypo is, I think, pretty good support for the Mulberry position. Surely the 22nd has to mean more than changing the order of the names on the yard signs.

 

[rodoheel]

Here's a series of hypotheticals to consider. Does the 22nd prohibit none of these from happening - or all of them? If it prevents some but not others, which ones and why?

1. Trump and Vance announce in 2027 that they are running in 2028 but in flipped roles: Vance as the President and Trump as the VP on the ticket. They are open about the fact that the plan is for Vance to step down immediately after being sworn in, so that Trump becomes President again, and that's what they do.

2. Trump and Vance announce in 2027 that they are running in 2028 but in flipped roles: Vance as the President and Trump as the VP on the ticket. No one says anything about Vance intending to step down. Three months after being elected, Vance steps down voluntarily, citing health/mental issues, and Trump becomes President again.

3. Trump and Vance announce in 2027 that they are running in 2028 but in flipped roles: Vance as the President and Trump as the VP on the ticket. They repeatedly and openly say that there is no intent for Trump to become President again. Three months after being elected, Vance steps down voluntarily, citing health/mental issues, and Trump becomes President again.

4. Trump and Vance announce in 2027 that they are running in 2028 but in flipped roles: Vance as the President and Trump as the VP on the ticket. They repeatedly and openly say that there is no intent for Trump to become President again. One year after being elected, Vance is assassinated by someone who says he wants Trump to be President again, and Trump becomes President again.

5. Trump and Vance announce in 2027 that they are running in 2028 but in flipped roles: Vance as the President and Trump as the VP on the ticket. They repeatedly and openly say that there is no intent for Trump to become President again. One year after being elected, Vance dies of natural causes, and Trump becomes President again.

6. Trump doesn't run for President or VP in 2028, but runs for and is elected to a Florida House seat. During the campaign, the Republican candidate for VP/Pres, and Trump, all say that the plan - assuming they win all necessary races - is for Trump to be elected speaker of the house, the Pres/VP to immediately step aside, and Trump to become president again. They win all necessary elections, VP/Pres step aside, and Trump becomes President again.

7. Trump doesn't run for President or VP in 2028, but runs for and is elected to a Florida House seat and then becomes speaker of the house. No one says anything about President/VP intending to step down. Three months after being elected, Pres and VP step down voluntarily, citing health/mental issues, and Trump becomes President again.

8. Trump doesn't run for President or VP in 2028, but runs for and is elected to a Florida House seat and then becomes speaker of the house. Everyone repeatedly and openly says that there is no intent for Trump to become President again. Three months after being elected, Pres and VP step down voluntarily, citing health/mental issues, and Trump becomes President again.

9. Trump doesn't run for President or VP in 2028, but runs for and is elected to a Florida House seat and then becomes speaker of the house. Everyone repeatedly and openly says that there is no intent for Trump to become President again. One year after being elected, Pres and VP are assassinated by someone who says he wants Trump to be President again, and Trump becomes President again.

10. Trump doesn't run for President or VP in 2028, but runs for and is elected to a Florida House seat and then becomes speaker of the house. Everyone repeatedly and openly says that there is no intent for Trump to become President again. One year after being elected, Pres and VP are tragically killed in a crash of Air Force One, and Trump becomes President again.

 

[Calheel]

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.

BTW, having a parent who was a constitutional law professor and debating constitutional theory as a seven-year old does influence how I interpret the constitution. It is not just based on my professional experience.

 

[Mulberry Heel]

I'm not arguing for a textualist interpretation -- say like a contract. Generally, I think textualists produce some of the worst constitutional analysis.

But, you can't simply write words out of the constitution. When the amendment says "elected" rather than "served" -- there needs to be meaning afforded to that word choice. Mulberry interprets the 22nd as effectively using the word "served" rather than elected because he cannot understand why any rational person would limit the 22nd to just elections.

I can understand it, I just don't think the amendment would exist if it was not intended to do just that - limit a president to two terms period. I do not believe that the amendment would have been added to the constitution if it was the intent that there would be loopholes so that someone could get around the elected part. That would seem to defeat the very purpose of the amendment. As to whether that argument would stand up in a federal court, especially given the status of some of our current federal courts, is of course an entirely different subject.

 

[rodoheel]

Or, here's another hypo much different from the others: Trump doesn't run for any office. The Republican Pres/VP in 2028 say "If we're elected, we will appoint Trump as a Musk-esque advisor to the President, and he's basically going to be in charge; we'll run all the decisions by him." Is the 22nd implicated at all? If not, is there any other barrier to them doing that?

 

[superrific]

I thought I had answered that question earlier - Trump, even if he were elected or appointed to an office in the line of succession, could not become president even if the position became vacant. And strangely enough you are now echoing my argument in some ways. I have been arguing exactly what you posted - that "the people drafting the amendment never considered that a scenario like this could be a problem", so that is why the word "elected" was used instead of something like "served." And that their clear intent was that no president should get more than two terms, period. Your argument that the Supreme Court or other federal courts may not see that way is something I don't disagree with, as god knows this Supreme Court has already made some head-scratching rulings. I have no problem seeing a majority of them favoring the view you hold. My point is that the clear intent of the 22nd Amendment is that no president should get more than two terms, period, and that it was not meant to imply that one could become president via other methods - otherwise the amendment would not exist. Whether that stands up in a court of law is obviously a very different question.

I don't know of any law professors who would take that extreme view, that Trump couldn't serve as president via natural succession from a position other than vice-president.

And that would be my rebuttal to the calheel "elected has to have some significance." The limitation closes the VP loophole because of the 12th. It isn't true for the speaker of the house. There's just no way to interpret the provision rationally to prevent the Speaker loophole. Note that the line of succession is itself of questionable constitutional validity and there are influential people who think that no legislator or the speaker can succeed to the presidency.

It's not true that the drafters never considered a scenario like this. They didn't spend much time on it, but it was mentioned at least a few times during the debate. Enough to show that it was a foreseeable consequence. I also think the "intent" is not as clear as you think. When you look at the history, it's messier than that. Truman's status plays an important role.

 

[Calheel]

Or, here's another hypo much different from the others: Trump doesn't run for any office. The Republican Pres/VP in 2028 say "If we're elected, we will appoint Trump as a Musk-esque advisor to the President, and he's basically going to be in charge; we'll run all the decisions by him." Is the 22nd implicated at all? If not, is there any other barrier to them doing that?

Some would claim that is what Biden was doing with Obama (which is obviously not true).

But there is no prohibition on a president getting advice from an ex-president. But the new president would still need to be the one signing the bills.

 

[superrific]

BTW, having a parent who was a constitutional law professor and debating constitutional theory as a seven-year old does influence how I interpret the constitution. It is not just based on my professional experience.

I didn't know that about you.

 

[rodoheel]

I can understand it, I just don't think the amendment would exist if it was not intended to do just that - limit a president to two terms period. I do not believe that the amendment would have been added to the constitution if it was the intent that there would be loopholes so that someone could get around the elected part. That would seem to defeat the very purpose of the amendment. As to whether that argument would stand up in a federal court, especially given that status of some of our current federal courts is of course an entirely different subject.

For the most part no one intends a loophole to exist. That is largely the nature of a loophole. There is no dispute that Trump being elected/appointed to another office and succeeding to the Presidency could be called a "loophole" to the 22nd. But, at least to me, there is a difference between "we meant for this not to be possible and didn't consider that the words would be interpreted differently" (to me, that's what it would take to say the the drafters intended that no one be able to serve as President more than twice) and "we considered that, but didn't think it was a likely issue so we intentionally chose to just say "elected." I think the former would be a good argument if true - but I think it's a tough sell because it should have been easy to close that loophole with different word choice if it was actually the intent. The latter I think is more likely - but I'm not sure if I see that logic leads to being able to legitimately interpret the 22nd in the way you want it to be interpreted (which, again, is also the way I would want it to be interpreted).

 

[superrific]

Or, here's another hypo much different from the others: Trump doesn't run for any office. The Republican Pres/VP in 2028 say "If we're elected, we will appoint Trump as a Musk-esque advisor to the President, and he's basically going to be in charge; we'll run all the decisions by him." Is the 22nd implicated at all? If not, is there any other barrier to them doing that?

Senate confirmation. I think under that scenario, the Trump figure would probably be deemed an officer of the United States, but it's hard to know.

As for your other hypos: Trump cannot get elected VP. He can be appointed speaker, and from that position he could succeed to the presidency if the speaker can succeed. This is a simple resolution that avoids basically any and all slippery slope hypos (I think).