There’s a hot new panic sweeping the Left, especially the legal Left: that Donald Trump will find some way to stay in office after his term ends on January 20, 2029, notwithstanding the extremely clear and explicit language of the 22nd Amendment: “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 22nd Amendment was adopted and originally understood for precisely one purpose: to prevent anyone from repeating Franklin D. Roosevelt’s accomplishment of serving beyond the two terms that had been the presidential norm since George Washington. Republicans built their 1940 and 1944 presidential campaigns around FDR’s breach of that norm, and after he died in office early in his fourth term in 1945, the very next Republican Congress passed it two months into its tenure, in March 1947. It was ratified in 1951.
Trump, being Trump, likes to troll people by suggesting that he might stay in office longer than that. Given how quickly second-term presidents become impotent lame ducks, he has motivations for doing that beyond just the sheer malicious glee of spinning people up. But he’s hardly the first to push back against the strictures of the 22nd Amendment. In 2013, Democratic representative José Serrano introduced in Congress a proposal to repeal the 22nd Amendment so that Barack Obama could serve a third term. It was not his first try: Serrano had introduced the same proposal in 1997, 1999, 2001, 2003, 2005, and 2007. Republican congressman Guy Vander Jagt introduced a repeal proposal in 1986 that was explicitly intended to allow Ronald Reagan to run for a third term. Proposals have even been introduced at various times by Harry Reid, Mitch McConnell, Steny Hoyer, Jerrold Nadler, and Barney Frank and supported by Henry Hyde. In 2003, Bill Clinton told presidential historian Michael Beschloss that he thought the 22nd Amendment should be repealed. Reagan himself said in 1986 that he thought it had been a mistake.
All of them were wrong, and their efforts went nowhere. The two-term limit established by Washington’s example and reduced to writing in the 22nd Amendment is a prudent one whose value has been proven by experience and tested by time. More to the point, we have had 74 years of practice in which its interpretation has been universally accepted on a bipartisan basis, sending even popular two-term presidents such as Reagan, Clinton, and Obama into retirement and regularly prompting critics of the two-term limit to propose amending rather than ignoring it. Nobody has tried to scheme around it instead, much less to defy it flagrantly. That history of practice, combined with its simple, declarative language and the overwhelming evidence of its original public meaning in 1947–51, would be compelling to any originalist court. Even if the language of the Constitution could be parsed very finely to create a loophole, the Supreme Court has been very hesitant to embrace that species of argument when it involves throwing out longstanding practices of the political branch in favor of completely novel innovations in governance. That’s how we got the unanimous decision in Chiafalo v. Washington (2020), for example, upholding longstanding norms around state control of members of the Electoral College.
And yet, who says we should be worried about this? Mark Joseph Stern and Dahlia Lithwick. Jonathan Last. Michael Dorf. Democratic representative Dan Goldman. Jamelle Bouie, although at least he concedes that there’s no credence we should give to any legal argument to the contrary. Unsurprisingly, these people are mostly legal nihilists who believe neither in any fixed meaning or method to constitutional text or interpretation and who persist in willfully misreading what the Supreme Court does in order to characterize its majority as lawless. Last, for example: “Please do not tell me that the text of the Twenty-second Amendment is ironclad. The Constitution is whatever five justices say it is.”
Stern argues that:
Trump could, in theory, exploit a loophole in the Constitution to serve a third term. The 22nd Amendment says that no person can be elected as president more than twice. It doesn’t say that no person could serve as president for more than two terms. So, in theory, I explained, Trump could run as vice president in 2028, with some patsy at the top of the ticket. Then, if they win, at 12:01 p.m. on Inauguration Day, that patsy could resign, making Trump president a third time. We don’t think this will happen. We don’t want it to happen. But if we go by a rigid textualist reading of the 22nd Amendment, it could happen.
That theory, of course, runs into two problems. First, the text itself tries to close off the loophole for people who previously “held” or “acted” in the office without being elected, evidencing its intent broadly to prohibit ways of serving beyond two full terms. As Brian Kalt notes in his book Constitutional Cliffhangers, the language had been more broadly written in earlier versions. One said that no one “shall be chosen or serve as President of the United States for any term or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.” Another version stated, “A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.” The final language in the amendment was simplified by Senator Warren Magnuson entirely on the theory that these versions included too much “complicated legal language” and would confuse state legislators. The choice of phrasing was not made or understood to allow a two-term president to come back like a bad penny by running with a Potemkin candidate at the top of the ticket.
Second, the Twelfth Amendment bars anyone “constitutionally ineligible to the office of President” from becoming vice president, which fairly clearly would extend to anyone constitutionally ineligible to election to the job. Stern parries that “if it’s true that a twice-elected president can serve a third term as long as he isn’t directly elected to it, then he is not ‘constitutionally ineligible to the office of President’ under the Twelfth Amendment. That means he is eligible to be vice president, as well.” Dorf, who has been doing this one-weird-trick constitutional progressivism long enough that he was laying out this scheme in favor of a Gore-Clinton ticket in 2000, claims that he then thought that this reading “would not violate its spirit. On reflection, I now disagree with that conclusion. However, given the conservative judiciary’s continued march towards formalism, I have reason to think that the courts would accept the text-based parsing of the 22nd and Twelfth Amendments I’ve offered as against any argument rooted in their spirit.” But nothing in originalism requires such blind literalism that one inverts what the language was originally understood to mean.
As it happens, we actually had some serious efforts in Trump v. Anderson to draw a textual distinction between being elected to an office and holding the office. The argument was made by Trump lawyers, as Stern makes it now, that it would be premature to rule on whether Trump was eligible to be president in deciding to list his name on the ballot; all that matters is if he has qualified for the ballot, and his eligibility for the office itself could be decided only once he was elected. This was actually the theory upon which the Minnesota Supreme Court rejected a challenge to Trump. But the reason why courts have sometimes applied that distinction in dismissing pre-election challenges to, say, age or residency is that these are things that can change. Candidates can move before the election; they can have a birthday (as Joe Biden did in 1972 before being sworn into the Senate) between Election Day and when they take office. That’s not an issue in whether Trump, having been twice elected, would be eligible to be president again.
Legal questions aside, this is all fanciful. Trump will be 82 years old in January 2029. He’s always been more interested in the presidency as an ego thing than in terms of exercising power, which is why his worst moments came in contesting that he had lost the 2020 election — after January 6, he left office meekly. And now, in JD Vance, he has a young perceived heir. A far likelier scenario, assuming he doesn’t fall out with Vance, is for Trump to pull the strings to help Vance succeed him and then try to direct him in office if he succeeds — pretty much the model of how an aged Andrew Jackson operated with his heirs, Martin Van Buren and especially James K. Polk.
And why are these folks chattering on about 2029? I can see an easy explanation. During the election, it was possible to warn about any number of horribles when Trump takes office. It seemed far away and hypothetical. Now, only an act of God will prevent Trump from becoming president again in less than two weeks. He can’t subvert democracy by becoming president, because democracy elected him. So, the maximum alarm must be pinned to an event that is years enough in the future that the panic can be sustained for quite a while before it can be falsified by events. (The climate-change crowd are experts at this strategy). So, 2029 it is. Beats predicting what will happen in 2025.