Exploring How Trump Might Circumvent the Constitution — or Exploit a Loophole — to Secure a Third Term
An exploration of four potential strategies that could allow Trump to maintain political power beyond 2028.
TroibNews 
Less than two weeks have passed since the last presidential inauguration, but it’s worth imagining the next one.
Fast forward to January 20, 2029, after another turbulent four years under Donald Trump. Democrats are eager for the end of the Trump era, while Republicans have enjoyed it.
Now envision this scenario: the chief justice begins to deliver the oath of office. The next president raises his right hand and says:
“I, Donald John Trump, do solemnly swear…”
This could be a liberal's nightmare and a MAGA supporter’s dream: a potential third Trump term.
But it seems impossible, right? The Constitution clearly establishes a two-term limit for the presidency, and Trump’s terms would be considered non-consecutive. According to the 22nd Amendment, “No person shall be elected to the office of the President more than twice.”
Even someone like Trump, known for bending rules and breaking norms, should not be able to circumvent that clear constitutional restriction, right?
Not so fast.
Globally, leaders who consolidate power often do not relinquish it easily, even when confronted by constitutional limits. Trump, notably, has previously attempted to extend his time in office beyond his legal limits.
“Anyone who says that obviously the 22nd Amendment will deter Trump from trying for a third term has been living on a different planet than the one I’ve been living on,” said Ian Bassin, former associate White House counsel under President Barack Obama and now executive director of the nonprofit advocacy group Protect Democracy.
If Trump sought to stay in power past 2028, he could explore at least four potential paths:
He might initiate a movement to repeal the 22nd Amendment. A loophole in the amendment could allow him to run for vice president and then ascend to the presidency. He could run for president again, betting that a compliant Supreme Court will not intervene. Or he could simply refuse to step down — effectively ending America’s democratic experiment. Each option presents significant political, legal, and practical challenges, but the idea of a third Trump term should not be easily dismissed.
Trump himself seems to be keeping the possibility alive. He has publicly entertained the notion for years.
In August 2020, he told supporters: “We are going to win four more years. And then after that, we’ll go for another four years.”
In May 2024, he revisited the idea of a three-term presidency.
On November 13, 2024, shortly after winning his second term, he remarked to House Republicans: “I suspect I won’t be running again unless you say, ‘He’s so good we’ve got to figure something else out.’”
Just recently, he stated: “It will be the greatest honor of my life to serve not once but twice — or three or four times,” before clarifying, “Nah, it will be to serve twice.”
Perhaps Trump is just joking. Maybe he is merely provoking the media. Yet his continued spoken interest reveals that it’s a serious consideration.
**Reasons Trump Might Pursue a Third Term**
There are initial arguments against this scenario, which stem from physical and psychological considerations: Would Trump, turning 82 by the end of his second term, be healthy enough to hold a third? And if so, would he even desire it?
On January 20, 2029, he might choose to retire to Mar-a-Lago, having vanquished his rivals and solidified his legacy as a significant historical figure.
It’s a possibility. But if he retains the capability to serve, Trump could have compelling reasons to keep the powers and privileges of the presidency.
Consider a key motivation for his run in 2024: to evade criminal charges. This strategy succeeded, as his victory forced the shutdown of two federal cases against him due to the Justice Department's long-standing position that a sitting president cannot be prosecuted. His election dealt a blow to the already struggling case against him in Georgia as well. In the New York hush money case, the only one of the four to go to trial and result in a conviction, Trump’s win ensured that he escaped with only an “unconditional discharge” — a mere slap on the wrist.
However, Trump might still not be entirely free of legal issues by the end of his second term. After the recent dismissal of his federal charges by special counsel Jack Smith, Smith reserved the right for a future Justice Department to refile those charges once Trump is out of office. If a Democrat seems poised to win the 2028 election, Trump could worry that those charges might resurface.
Moreover, who knows what actions Trump could take in the next four years that might invite new legal liabilities? The Supreme Court’s broad immunity ruling last year poses a challenge to prosecuting him for anything during his presidency, but it’s not an insurmountable barrier. If there are serious calls for prosecution post-term, Trump might decide that remaining in office is the best way to stave off those threats.
Beyond using the presidency as a legal shield, Trump might be motivated by a more basic impulse: a desire for power. This is a driving force for autocratic leaders worldwide, especially those who chip away at democratic institutions and engage in almost-savior-like rhetoric.
“Presidents tend to like their jobs, and there have been many attempts for them to overstay,” notes Mila Versteeg, a law professor at the University of Virginia.
Versteeg co-authored a study that evaluated 234 heads of state across 106 countries in the 21st century, concluding that one-third of them sought to circumvent legally mandated term limits. Many succeeded — not by directly violating the law but by exploiting weaknesses in their constitutional systems or persuading compliant courts to endorse their consolidations of power.
Recep Tayyip Erdogan in Turkey, Daniel Ortega in Nicaragua, and Vladimir Putin in Russia are among the leaders who have achieved this, including those whom Trump admires.
“In the countries where this has happened, the rule of law is much weaker than in the United States,” Versteeg says. “But we shouldn’t dismiss it as impossible or unimaginable. It has happened around the world.”
**How Trump Might Attempt It**
If Trump aims to make it a reality in the U.S., could he potentially succeed?
At first glance, the 22nd Amendment appears absolute. It was ratified in 1951 as a reaction to Franklin Delano Roosevelt’s four terms. Prior to him, no president had sought reelection after two terms — a tradition that originated with George Washington.
Importantly for Trump, the amendment does not limit itself to consecutive terms. Most constitutional scholars agree that the two-term limit applies regardless of whether the terms are consecutive.
However, this is not a definitive conclusion. The Constitution’s provisions are upheld only as strongly as the institutions that maintain them. Trump could chip away at, or even disregard, these rules through both legal and extralegal measures. He is already attempting to transform the birthright citizenship clause of the 14th Amendment. Is there any reason he wouldn’t try a similar tactic with the 22nd Amendment’s term limitations?
Here are four potential paths he might pursue.
**Option 1: Change the Constitution**
A straightforward approach would be persuading Americans to repeal the 22nd Amendment’s two-term limit. Repealing an amendment is legally viable: the 18th Amendment’s prohibition on alcohol was repealed once.
However, a formal repeal would require broad support, a daunting prospect in today's polarized landscape. Two-thirds of both congressional chambers would need to propose a new amendment, or two-thirds of the states would need to call for a constitutional convention to suggest one. Then, three-fourths of states would need to ratify the proposed amendment. Even if Trump retains popularity among Republicans, achieving supermajorities seems improbable.
Still, some conservative voices are advocating for this effort.
Tennessee GOP Rep. Andy Ogles has already introduced a proposal for a constitutional amendment allowing Trump to aim for a third term.
Additionally, The American Conservative provided initial support for this initiative before Trump even secured his last election, stating that if the electorate believes Trump performed well, they should not be barred from choosing him again.
Some Democrats are also preemptively responding. Rep. Dan Goldman of New York suggested a resolution last fall reaffirming that the 22nd Amendment applies to non-consecutive terms.
A few blue states are attempting to rescind their long-dormant requests for a constitutional convention, fearing that Republicans could leverage those requests, made decades ago, to ignite a convention that could propose numerous unpredictable amendments. Notably, House Budget Chair Jodey Arrington of Texas believes the required threshold for such a convention has already been met.
While Trump has not directly endorsed amendment efforts, he recently shared a post from Texas Lt. Gov. Dan Patrick, which praised his administration. “People are already talking about changing the 22nd Amendment so he can serve a third term,” Patrick noted. “If this pace and success keeps up for 4 years, and there is no reason it won’t, most Americans really won’t want him to leave.”
**Option 2: Sidestep the Constitution**
If amending the two-term limit proves too complex, Trump might seek a workaround. The 22nd Amendment contains a significant loophole.
The text prohibits anyone from being “elected” to a third presidential term but does not prevent someone from becoming president through other channels — for example, by being elected as vice president and then ascending to the presidency if the sitting president dies, resigns, or is removed from office.
This loophole may open up a clever scenario. Imagine that, near the end of Trump’s second term, a new Republican candidate, let’s say JD Vance, secures the presidential nomination. Vance could select Trump as his vice-presidential running mate, pledging to resign on Day 1 and return the presidency to Trump.
The campaign slogan practically writes itself: “Vote Vance to Make Trump President Again.”
While this may seem like an unlikely tactic, with Trump’s continued influence over the Republican Party seen in previous cycles, the concept could gain traction, especially if Vance or another political ally agrees to cooperate.
Trump would, however, face some risk with this strategy. He would have to trust that Vance or his preferred successor would follow through on the commitment. If they decided against stepping down after winning, the plan could collapse. However, if the campaign promises Trump’s presidency on the ticket, the political pressure for adherence could be immense.
“It would not be surprising — if the president were interested in the presidency again — that he would seek to go down this path,” suggests Bruce Peabody, a law professor at Fairleigh Dickinson University.
Peabody previously considered the potential for a twice-elected president to assume other high government roles that would enable them to become president again, concluding that the scenario was not only constitutional but also politically plausible.
You could liken it to the Putin-Medvedev paradigm. In 2008, while constitutionally barred from continuing in power, Putin served as prime minister under President Dmitry Medvedev, maintaining significant influence before returning to formal leadership.
In the U.S., other constitutional constraints could complicate this loophole. The 12th Amendment, ratified in 1804, stipulates that no one “constitutionally ineligible to the office of President shall be eligible to that of Vice President.” If Trump is disqualified from serving a third presidential term under the 22nd Amendment, it seems he would also be ineligible for the vice presidency. Thus, the loophole might not hold.
Yet, the 22nd Amendment does not label Trump ineligible for a third term; it merely bars him from running. The 12th Amendment’s eligibility requirement might not preclude Trump from utilizing the loophole.
“You could make a case that it’s pretty clear that a twice-elected president is still eligible,” Peabody says. “You could also argue it’s murky. But I don’t find the argument terribly convincing that it’s a slam dunk that he isn’t eligible.”
**Option 3: Ignore the Constitution**
Should the first two options prove too convoluted, Trump might take an even bolder, more Trumpian approach: he could simply run for a third term and see if anyone attempts to stop him.
Determining who might intervene raises complex questions. Would the Republican National Committee bar him from seeking the party's nomination for 2028? Unlikely, especially if he continues to dominate the GOP. Would states refuse to include him on their ballots? Some might, but such actions would likely lead to legal disputes, ultimately culminating in a Supreme Court decision — a court that has historically leaned in Trump’s favor and may be stocked with even more of his appointees by 2028.
However, would the Supreme Court truly authorize such a blatant violation of the 22nd Amendment? While it might seem improbable now, the context during the 2028 election season will be crucial.
Amid the campaign, Trump would likely insist on running for the betterment of the nation. The RNC would officially endorse him. If a significant portion of the public continues to back Trump, the political pressures become complicated.
Declaring him ineligible would require immense courage from the justices.
“All you need is a court that is willing to be your faithful helper,” Versteeg notes, suggesting that it is unlikely, but not impossible, that the current court would align with Trump.
Bassin from Protect Democracy is more direct.
“The court’s gonna tell the Republican Party that they can’t run their candidate?” he poses. “I don’t think so.”
This situation recalls a similar instance. Many legal scholars speculated that Trump was constitutionally ineligible to run in 2024 due to the 14th Amendment’s prohibitions against anyone involved in an insurrection from holding federal office. When Colorado sought to apply that provision, citing Trump’s actions on January 6, 2021, the Supreme Court intervened promptly. The court ruled that only Congress could enforce the insurrection clause, which did not reflect the 14th Amendment’s stipulations.
That ruling was viewed as being partly motivated by outcomes — the justices simply weren’t inclined to let states exclude a leading Republican candidate from the ballot. A similar mindset might apply if Trump decides to run again.
Some might argue that the 22nd Amendment is much clearer than the 14th’s complex language regarding insurrections. However, litigation can obscure even the most straightforward language, and Trump’s legal teams would have ample opportunity to frame the two-term limit as ambiguous.
Perhaps they will discover an originalist interpretation to suggest that the two-term limit does not mean what it appears to mean.
Maybe they’ll argue that the amendment only applies to consecutive terms. Notably, Trump ally Steve Bannon has floated this notion.
Another possibility is raising procedural questions about the amendment’s ratification. Versteeg highlights that procedural arguments frequently appear as tactics to undermine constitutional term limits in other countries.
Alternatively, they could assert that another constitutional provision might supersede the 22nd Amendment’s restrictions. For instance, could Trump claim a due process right to run for president, or argue that voters have a due process right to choose their preferred candidate, even if it conflicts with the 22nd Amendment?
These arguments tend to lack legal robustness, and most constitutional scholars today would likely dismiss them. Nonetheless, by bringing these ideas to court and the public eye, Trump’s legal representatives could create a perception of ambiguity. As legal scholar Jack Balkin has demonstrated, this process of normalizing outlandish constitutional arguments can eventually transform them into accepted doctrine by the Supreme Court.
**Option 4: Defy the Constitution**
Finally, there remains the starkest possibility: Trump could simply refuse to leave office.
Predicting what this might entail is challenging. A typical tactic for autocrats is to declare a national emergency, even though legally a president lacks authority to cancel or postpone elections. Trump could seize upon a natural disaster or even initiate military action. Alternatively, he might allow the 2028 election to proceed, but then assert that the results were manipulated, choosing to assert his power regardless.
Trump seems to be amplifying his authoritarian tendencies now. He has begun consolidating power across the government through strict loyalty measures, ousting independent watchdogs, and attempting to assert control over congressional funding. His pardons of those involved in the January 6 riots, including members of extremist groups like the Oath Keepers and Proud Boys, further illustrate this trend.
The last time Trump attempted to cling to power, he propagated falsehoods about election fraud to undermine the 2020 results, encouraging his followers to take drastic actions in Washington on the day of his defeat's certification. In four years, could he execute an even more audacious and lawless power grab? It’s a daunting scenario to consider. Scholars of authoritarianism note that the demise of norms like term limits often results from a gradual erosion rather than a single blatant coup, typically aided by individuals and institutions within the constitutional framework.
On January 20, 2021, after numerous attempts to overturn Joe Biden’s victory failed, Trump vacated the office. Power transitioned, and the nation’s democratic apparatus survived.
Yet, should he threaten the power transfer again, the endurance of American democracy remains uncertain.
One aspect is clear: mere adherence to the words of the 22nd Amendment is insufficient.
Navid Kalantari for TROIB News
Fast forward to January 20, 2029, after another turbulent four years under Donald Trump. Democrats are eager for the end of the Trump era, while Republicans have enjoyed it.
Now envision this scenario: the chief justice begins to deliver the oath of office. The next president raises his right hand and says:
“I, Donald John Trump, do solemnly swear…”
This could be a liberal's nightmare and a MAGA supporter’s dream: a potential third Trump term.
But it seems impossible, right? The Constitution clearly establishes a two-term limit for the presidency, and Trump’s terms would be considered non-consecutive. According to the 22nd Amendment, “No person shall be elected to the office of the President more than twice.”
Even someone like Trump, known for bending rules and breaking norms, should not be able to circumvent that clear constitutional restriction, right?
Not so fast.
Globally, leaders who consolidate power often do not relinquish it easily, even when confronted by constitutional limits. Trump, notably, has previously attempted to extend his time in office beyond his legal limits.
“Anyone who says that obviously the 22nd Amendment will deter Trump from trying for a third term has been living on a different planet than the one I’ve been living on,” said Ian Bassin, former associate White House counsel under President Barack Obama and now executive director of the nonprofit advocacy group Protect Democracy.
If Trump sought to stay in power past 2028, he could explore at least four potential paths:
He might initiate a movement to repeal the 22nd Amendment. A loophole in the amendment could allow him to run for vice president and then ascend to the presidency. He could run for president again, betting that a compliant Supreme Court will not intervene. Or he could simply refuse to step down — effectively ending America’s democratic experiment. Each option presents significant political, legal, and practical challenges, but the idea of a third Trump term should not be easily dismissed.
Trump himself seems to be keeping the possibility alive. He has publicly entertained the notion for years.
In August 2020, he told supporters: “We are going to win four more years. And then after that, we’ll go for another four years.”
In May 2024, he revisited the idea of a three-term presidency.
On November 13, 2024, shortly after winning his second term, he remarked to House Republicans: “I suspect I won’t be running again unless you say, ‘He’s so good we’ve got to figure something else out.’”
Just recently, he stated: “It will be the greatest honor of my life to serve not once but twice — or three or four times,” before clarifying, “Nah, it will be to serve twice.”
Perhaps Trump is just joking. Maybe he is merely provoking the media. Yet his continued spoken interest reveals that it’s a serious consideration.
**Reasons Trump Might Pursue a Third Term**
There are initial arguments against this scenario, which stem from physical and psychological considerations: Would Trump, turning 82 by the end of his second term, be healthy enough to hold a third? And if so, would he even desire it?
On January 20, 2029, he might choose to retire to Mar-a-Lago, having vanquished his rivals and solidified his legacy as a significant historical figure.
It’s a possibility. But if he retains the capability to serve, Trump could have compelling reasons to keep the powers and privileges of the presidency.
Consider a key motivation for his run in 2024: to evade criminal charges. This strategy succeeded, as his victory forced the shutdown of two federal cases against him due to the Justice Department's long-standing position that a sitting president cannot be prosecuted. His election dealt a blow to the already struggling case against him in Georgia as well. In the New York hush money case, the only one of the four to go to trial and result in a conviction, Trump’s win ensured that he escaped with only an “unconditional discharge” — a mere slap on the wrist.
However, Trump might still not be entirely free of legal issues by the end of his second term. After the recent dismissal of his federal charges by special counsel Jack Smith, Smith reserved the right for a future Justice Department to refile those charges once Trump is out of office. If a Democrat seems poised to win the 2028 election, Trump could worry that those charges might resurface.
Moreover, who knows what actions Trump could take in the next four years that might invite new legal liabilities? The Supreme Court’s broad immunity ruling last year poses a challenge to prosecuting him for anything during his presidency, but it’s not an insurmountable barrier. If there are serious calls for prosecution post-term, Trump might decide that remaining in office is the best way to stave off those threats.
Beyond using the presidency as a legal shield, Trump might be motivated by a more basic impulse: a desire for power. This is a driving force for autocratic leaders worldwide, especially those who chip away at democratic institutions and engage in almost-savior-like rhetoric.
“Presidents tend to like their jobs, and there have been many attempts for them to overstay,” notes Mila Versteeg, a law professor at the University of Virginia.
Versteeg co-authored a study that evaluated 234 heads of state across 106 countries in the 21st century, concluding that one-third of them sought to circumvent legally mandated term limits. Many succeeded — not by directly violating the law but by exploiting weaknesses in their constitutional systems or persuading compliant courts to endorse their consolidations of power.
Recep Tayyip Erdogan in Turkey, Daniel Ortega in Nicaragua, and Vladimir Putin in Russia are among the leaders who have achieved this, including those whom Trump admires.
“In the countries where this has happened, the rule of law is much weaker than in the United States,” Versteeg says. “But we shouldn’t dismiss it as impossible or unimaginable. It has happened around the world.”
**How Trump Might Attempt It**
If Trump aims to make it a reality in the U.S., could he potentially succeed?
At first glance, the 22nd Amendment appears absolute. It was ratified in 1951 as a reaction to Franklin Delano Roosevelt’s four terms. Prior to him, no president had sought reelection after two terms — a tradition that originated with George Washington.
Importantly for Trump, the amendment does not limit itself to consecutive terms. Most constitutional scholars agree that the two-term limit applies regardless of whether the terms are consecutive.
However, this is not a definitive conclusion. The Constitution’s provisions are upheld only as strongly as the institutions that maintain them. Trump could chip away at, or even disregard, these rules through both legal and extralegal measures. He is already attempting to transform the birthright citizenship clause of the 14th Amendment. Is there any reason he wouldn’t try a similar tactic with the 22nd Amendment’s term limitations?
Here are four potential paths he might pursue.
**Option 1: Change the Constitution**
A straightforward approach would be persuading Americans to repeal the 22nd Amendment’s two-term limit. Repealing an amendment is legally viable: the 18th Amendment’s prohibition on alcohol was repealed once.
However, a formal repeal would require broad support, a daunting prospect in today's polarized landscape. Two-thirds of both congressional chambers would need to propose a new amendment, or two-thirds of the states would need to call for a constitutional convention to suggest one. Then, three-fourths of states would need to ratify the proposed amendment. Even if Trump retains popularity among Republicans, achieving supermajorities seems improbable.
Still, some conservative voices are advocating for this effort.
Tennessee GOP Rep. Andy Ogles has already introduced a proposal for a constitutional amendment allowing Trump to aim for a third term.
Additionally, The American Conservative provided initial support for this initiative before Trump even secured his last election, stating that if the electorate believes Trump performed well, they should not be barred from choosing him again.
Some Democrats are also preemptively responding. Rep. Dan Goldman of New York suggested a resolution last fall reaffirming that the 22nd Amendment applies to non-consecutive terms.
A few blue states are attempting to rescind their long-dormant requests for a constitutional convention, fearing that Republicans could leverage those requests, made decades ago, to ignite a convention that could propose numerous unpredictable amendments. Notably, House Budget Chair Jodey Arrington of Texas believes the required threshold for such a convention has already been met.
While Trump has not directly endorsed amendment efforts, he recently shared a post from Texas Lt. Gov. Dan Patrick, which praised his administration. “People are already talking about changing the 22nd Amendment so he can serve a third term,” Patrick noted. “If this pace and success keeps up for 4 years, and there is no reason it won’t, most Americans really won’t want him to leave.”
**Option 2: Sidestep the Constitution**
If amending the two-term limit proves too complex, Trump might seek a workaround. The 22nd Amendment contains a significant loophole.
The text prohibits anyone from being “elected” to a third presidential term but does not prevent someone from becoming president through other channels — for example, by being elected as vice president and then ascending to the presidency if the sitting president dies, resigns, or is removed from office.
This loophole may open up a clever scenario. Imagine that, near the end of Trump’s second term, a new Republican candidate, let’s say JD Vance, secures the presidential nomination. Vance could select Trump as his vice-presidential running mate, pledging to resign on Day 1 and return the presidency to Trump.
The campaign slogan practically writes itself: “Vote Vance to Make Trump President Again.”
While this may seem like an unlikely tactic, with Trump’s continued influence over the Republican Party seen in previous cycles, the concept could gain traction, especially if Vance or another political ally agrees to cooperate.
Trump would, however, face some risk with this strategy. He would have to trust that Vance or his preferred successor would follow through on the commitment. If they decided against stepping down after winning, the plan could collapse. However, if the campaign promises Trump’s presidency on the ticket, the political pressure for adherence could be immense.
“It would not be surprising — if the president were interested in the presidency again — that he would seek to go down this path,” suggests Bruce Peabody, a law professor at Fairleigh Dickinson University.
Peabody previously considered the potential for a twice-elected president to assume other high government roles that would enable them to become president again, concluding that the scenario was not only constitutional but also politically plausible.
You could liken it to the Putin-Medvedev paradigm. In 2008, while constitutionally barred from continuing in power, Putin served as prime minister under President Dmitry Medvedev, maintaining significant influence before returning to formal leadership.
In the U.S., other constitutional constraints could complicate this loophole. The 12th Amendment, ratified in 1804, stipulates that no one “constitutionally ineligible to the office of President shall be eligible to that of Vice President.” If Trump is disqualified from serving a third presidential term under the 22nd Amendment, it seems he would also be ineligible for the vice presidency. Thus, the loophole might not hold.
Yet, the 22nd Amendment does not label Trump ineligible for a third term; it merely bars him from running. The 12th Amendment’s eligibility requirement might not preclude Trump from utilizing the loophole.
“You could make a case that it’s pretty clear that a twice-elected president is still eligible,” Peabody says. “You could also argue it’s murky. But I don’t find the argument terribly convincing that it’s a slam dunk that he isn’t eligible.”
**Option 3: Ignore the Constitution**
Should the first two options prove too convoluted, Trump might take an even bolder, more Trumpian approach: he could simply run for a third term and see if anyone attempts to stop him.
Determining who might intervene raises complex questions. Would the Republican National Committee bar him from seeking the party's nomination for 2028? Unlikely, especially if he continues to dominate the GOP. Would states refuse to include him on their ballots? Some might, but such actions would likely lead to legal disputes, ultimately culminating in a Supreme Court decision — a court that has historically leaned in Trump’s favor and may be stocked with even more of his appointees by 2028.
However, would the Supreme Court truly authorize such a blatant violation of the 22nd Amendment? While it might seem improbable now, the context during the 2028 election season will be crucial.
Amid the campaign, Trump would likely insist on running for the betterment of the nation. The RNC would officially endorse him. If a significant portion of the public continues to back Trump, the political pressures become complicated.
Declaring him ineligible would require immense courage from the justices.
“All you need is a court that is willing to be your faithful helper,” Versteeg notes, suggesting that it is unlikely, but not impossible, that the current court would align with Trump.
Bassin from Protect Democracy is more direct.
“The court’s gonna tell the Republican Party that they can’t run their candidate?” he poses. “I don’t think so.”
This situation recalls a similar instance. Many legal scholars speculated that Trump was constitutionally ineligible to run in 2024 due to the 14th Amendment’s prohibitions against anyone involved in an insurrection from holding federal office. When Colorado sought to apply that provision, citing Trump’s actions on January 6, 2021, the Supreme Court intervened promptly. The court ruled that only Congress could enforce the insurrection clause, which did not reflect the 14th Amendment’s stipulations.
That ruling was viewed as being partly motivated by outcomes — the justices simply weren’t inclined to let states exclude a leading Republican candidate from the ballot. A similar mindset might apply if Trump decides to run again.
Some might argue that the 22nd Amendment is much clearer than the 14th’s complex language regarding insurrections. However, litigation can obscure even the most straightforward language, and Trump’s legal teams would have ample opportunity to frame the two-term limit as ambiguous.
Perhaps they will discover an originalist interpretation to suggest that the two-term limit does not mean what it appears to mean.
Maybe they’ll argue that the amendment only applies to consecutive terms. Notably, Trump ally Steve Bannon has floated this notion.
Another possibility is raising procedural questions about the amendment’s ratification. Versteeg highlights that procedural arguments frequently appear as tactics to undermine constitutional term limits in other countries.
Alternatively, they could assert that another constitutional provision might supersede the 22nd Amendment’s restrictions. For instance, could Trump claim a due process right to run for president, or argue that voters have a due process right to choose their preferred candidate, even if it conflicts with the 22nd Amendment?
These arguments tend to lack legal robustness, and most constitutional scholars today would likely dismiss them. Nonetheless, by bringing these ideas to court and the public eye, Trump’s legal representatives could create a perception of ambiguity. As legal scholar Jack Balkin has demonstrated, this process of normalizing outlandish constitutional arguments can eventually transform them into accepted doctrine by the Supreme Court.
**Option 4: Defy the Constitution**
Finally, there remains the starkest possibility: Trump could simply refuse to leave office.
Predicting what this might entail is challenging. A typical tactic for autocrats is to declare a national emergency, even though legally a president lacks authority to cancel or postpone elections. Trump could seize upon a natural disaster or even initiate military action. Alternatively, he might allow the 2028 election to proceed, but then assert that the results were manipulated, choosing to assert his power regardless.
Trump seems to be amplifying his authoritarian tendencies now. He has begun consolidating power across the government through strict loyalty measures, ousting independent watchdogs, and attempting to assert control over congressional funding. His pardons of those involved in the January 6 riots, including members of extremist groups like the Oath Keepers and Proud Boys, further illustrate this trend.
The last time Trump attempted to cling to power, he propagated falsehoods about election fraud to undermine the 2020 results, encouraging his followers to take drastic actions in Washington on the day of his defeat's certification. In four years, could he execute an even more audacious and lawless power grab? It’s a daunting scenario to consider. Scholars of authoritarianism note that the demise of norms like term limits often results from a gradual erosion rather than a single blatant coup, typically aided by individuals and institutions within the constitutional framework.
On January 20, 2021, after numerous attempts to overturn Joe Biden’s victory failed, Trump vacated the office. Power transitioned, and the nation’s democratic apparatus survived.
Yet, should he threaten the power transfer again, the endurance of American democracy remains uncertain.
One aspect is clear: mere adherence to the words of the 22nd Amendment is insufficient.
Navid Kalantari for TROIB News
