The 22nd Amendment and Trump’s Possible Path to Reelection
Many have questioned whether President Trump will seek a third term. While the 22nd Amendment establishes a strict two-term presidential limit, President Trump has hinted at running again in 2028, noting that he would “love to do it,” and his backers like Steve Bannon have gone so far as to say that he will not only run, but will win reelection in 2028 in order to “finish what we’ve started.” This article will investigate possible loopholes that the Trump administration may take to bypass the 22nd Amendment. Three main avenues exist for President Trump: directly repealing the 22nd Amendment, becoming vice president or Speaker of the House in the next administration then succeeding the acting president upon his or her resignation, or declaring war against a foreign nation and claiming that war powers supersede term limits.
The 22nd Amendment was ratified in 1951, four years after it was first proposed in Congress, and six years after Franklin D. Roosevelt’s fourth term as president ended upon his death. Roosevelt had gone against the unofficial two-term limit set by George Washington. He justified this unique act by citing the chaos of the Great Depression and World War II as creating the circumstances necessary for a trusted leader like himself to continue serving as president. Apart from him, no other president has served for more than two terms. Just as Roosevelt justified his four terms based on major crises, President Trump might attempt to use current events, such as the Fentanyl Crisis, to justify a third term. However, the language of the 22nd Amendment is clear: “No person shall be elected to the office of the President more than twice.” There is little ambiguity here, making it quite difficult for any president to try and circumvent this amendment and run for a third term.
Directly overturning the 22nd Amendment is the least likely avenue for President Trump to serve a third term. Despite continuous minority opposition to this amendment from the likes of Ronald Reagan and Bill Clinton and the proposal of various amendments in Congress to strike it down or alter it, it remains in law today. The only way to repeal an amendment is to pass a new amendment overturning it. This action has only been successfully done once before, with the repeal of the 18th Amendment by the 21st Amendment in 1933. This process requires two-thirds of the House and Senate to vote to propose the amendment and 38 states to ratify it. The current relatively balanced two-party makeup of the House of Representatives and the Senate, as well as the states, renders the direct overturning of the 22nd Amendment highly unlikely, unless President Trump were to win over a significant number of Democratic Congresspeople and state representatives.
One peculiar aspect of Trump’s current term is that it was nonconsecutive with his first term. The 22nd Amendment states “no more than twice” as the limit for how many times a president can be elected. And yet, three days after Trump’s inauguration, House Republican Representative Andy Ogles of Tennessee proposed altering the 22nd Amendment to allow for a third term following two nonconsecutive terms. While this attempt was shot down, it conveys at least some congressional backing for a third Trump term. Due to the lack of direct avenues to defy the 22nd Amendment without clearly breaking the law, it is likely that extralegal means will be used if President Trump attempts a third term.
The 22nd Amendment lacks a provision concerning vice presidents, opening the door for a possible loophole. When the president resigns, is removed from, or dies in office, the vice president automatically assumes the role. This provision provides a seemingly perfect opportunity for President Trump to run as vice president on the 2028 ticket with J.D. Vance as president. The same procedure exists for the vice president: the Speaker of the House assumes that role if the acting president leaves office and if the new president resigns then the Speaker of the House (now vice president) assumes the presidency. This provision would allow the president to bypass the “elected” restriction in the 22nd Amendment. However, the 12th Amendment complicates this loophole by stating that “no person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States”. The gray area, which President Trump could attempt to manipulate, lies in the loosely defined phrasing of “constitutional ineligibility” and the restrictions that fall under it.
The 22nd Amendment officially added a requirement of not having been elected president twice to the other constitutional eligibility requirements for president—“being a ‘natural born’ citizen, at least 35 years old and a resident within the U.S. for at least 14 years.” Some have argued that the 12th Amendment only includes the eligibility requirements specifically outlined in the Constitution’s original provisions, which were present at the time of its ratification. However, the language used in the 12th Amendment falls under the Reference Canon since it broadly refers to “constitutional ineligib[ility]” rather than the specific regulations that existed at the time; therefore, the 22nd Amendment should be seen as within the scope of the 12th Amendment. However, one ambiguity exists between the texts of the 12th and 22nd Amendments. While the 12th Amendment restricts the office of the vice president to those eligible for the presidency, the 22nd Amendment merely prohibits a candidate from being eligible to run for the presidency, but does not explicitly say that a former president who has already served two terms is ineligible to serve as president again in the future. Thus, Trump might argue that while he is ineligible to run for president, he remains capable of attaining the office of president and can therefore run on the 2028 ticket as vice president.
President Trump and his allies continue to signal interest in exploring every possible avenue to remain in office beyond the two-term limit. While these paths are theoretically outlined by his supporters, constitutional law and American political precedent render each option doubtful. Ultimately, barring a successful constitutional amendment, any serious attempt to circumvent the 22nd Amendment would face profound legal, institutional, and public resistance.
The final loophole the Trump administration may pursue is using martial law in a wartime context to extend his rule indefinitely. Laws concerning martial law in the United States are quite “old, vague, and inconsistent”. Without a formal definition, martial law loosely refers to emergency war powers of the president, allowing him or her to expand legal authority over civilians, replacing civilian rule with military rule. Even with martial law, however, the president remains bound by the Constitution under Article 1, Section 8, Clause 11, also known as the War Powers Clause. This clause provides the president with the right to “declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water”. This power was slightly weakened by Congress through the passing of the War Powers Resolution of 1973, which required congressional approval for any declaration of war. Yet, this act spoke little on martial law. Without clearly defined presidential powers during wartime, this loophole seems possible, though the president would have to defy the 22nd Amendment in the process, therefore breaking the presidential oath to “preserve, protect, and defend the Constitution of the United States.”
Each of the three most likely avenues to a third Trump term faces major obstacles, mainly due to the clear language in the 22nd and 12th Amendments that the president shall not serve a third term and that anyone who is ineligible to be president is ineligible to become vice president, respectively. The only plausible route is to read the ambiguity of the 12th Amendment in tandem with the 22nd Amendment to allow President Trump to run as the vice presidential candidate on the 2028 ticket. This reading rests on a distinction between Trump’s ineligibility to be elected president and his continued eligibility to serve again as president. This maneuver would possibly allow him to assume the presidency through the resignation of the elected president, though legal challenges would surely ensue, and the Supreme Court would be tasked with interpreting this textual ambiguity.
Edited by Isabella Sacca