DJT as FDR
Could Donald Trump become president again in 2028?
There is a legal case for a third term—but it is strewn with obstacles
“TRUMP Is going to be president in 28, and people just ought to get accommodated with that.”
So Steve Bannon, a former White House chief strategist, addressed the possibility of a third Trump presidential term in a video interview with The Economist.
“At the appropriate time, we’ll lay out what the plan is.”
It is hard to know if Mr Bannon is serious or not.
But his suggestion is worth taking seriously because Donald Trump has repeatedly floated the idea of serving a third term.
“I would love to do it,” he recently enthused, before more recently ruling it out.
“It’s pretty clear I’m not allowed to run,” he told reporters this week.
Is it?
No president other than Franklin Delano Roosevelt has served more than two terms.
In part because of Roosevelt’s norm-shattering fourth electoral victory in 1944, Congress later passed—and 41 states ratified—the 22nd Amendment, which limits a president to two terms.
It states that “no person shall be elected to the office of the President more than twice”.
Legal scholars argue that there is a loophole, though.
Although the 22nd Amendment bars a person from being “elected” to more than two terms, it says nothing about serving or holding office again.
Mr Trump could theoretically run as a vice-presidential candidate, and then, once his pliant running-mate resigns as president, succeed to the presidency.
Critics retort that the 12th Amendment, which says that someone who is ineligible to be elected president cannot be elected vice-president, rules this manoeuvre out.
But other scholars say that point is moot: two-termers may still be president, so long as they are not elected to get there.
Such a narrow argument violates the spirit of the 22nd Amendment.
It is also untested.
And yet, legal experts suggest that some courts may be deferential.
If a presiding judge is a strict textualist, they could find the argument persuasive, argues Brian Kalt, a constitutional-law professor at Michigan State University.
“There is a possibility that a court would be OK with this.”
“Five years ago I would have said they would fail”, says Stephen Gillers, a law professor at New York University.
“But now, I’m not so sure.”
Other zany workarounds may also exist.
One possible path involves being appointed, not elected, to the vice-presidency by a new president once their term starts.
Mr Trump would then need a majority vote in both houses of Congress, before becoming president through the 25th Amendment.
“In this sequence Trump is not ‘elected’ to anything, not even vice-president,” points out Mr Gillers.
In any case, Mr Trump appears to have ruled out the vice-presidential loophole, at least for now.
“I think people wouldn’t like that,” he said on October 27th.
“It’s too cute.
It wouldn’t be right.”
That too is a long-shot.
None of which seems to have deterred Mr Bannon.
“We had longer odds in 16 and longer odds in 24 than we’ve got in 28,” he says.
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