Nov.14

electoral-vote.com

Dem 47

   

GOP 53

Trump/Vance 2028?

Before sending us an e-mail telling us about the Twenty-Second Amendment, think out of the box. Donald Trump loves running for president, what with all the adoring crowds (even if they were much smaller than Kamala Harris' crowds). He didn't actually like being president the first time around, but he is warming to it. Besides, implementing the entire 900-page Project 2025 will take more than 4 years, so he will need another term, assuming he hasn't gone to the big White House in the sky by then. With his stock in DJT now worth billions of dollars, he can afford to hire a good constitutional lawyer, even if the lawyer requires a nonrefundable payment of $5 million in advance before starting to work on it.

Let's start with the basics. Here is Section 1 of the Twenty-Second Amendment:

Section 1

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. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2 describes the ratification procedure, which was fulfilled on Feb. 27, 1951. For the textualists among our readers, please note that the Amendment is about being elected to the presidency, not about serving as president.

We are not lawyers, but here are a couple of things we have thought of in 5 minutes (imagine what one of J.D. Vance's brilliant Yale Law School buddies could think of given 4 years and $5 million):

• Consecutive Terms: Trump could argue before the Supreme Court that the Twenty-Second Amendment, which was approved by Congress in 1947, was adopted in response to Franklin Delano Roosevelt being elected four times in a row, so it applies only to consecutive terms and thus his first term doesn't count. There is some precedent in barring consecutive terms in the states. Virginia, for example, bars governors from serving two consecutive terms, but does not limit the total number of terms they may serve. It would ultimately be up to the Supreme Court, stocked with five or six Trump appointees, to rule on this and they could well agree with Trump.
  
  
• No Enabling Legislation: The Fourteenth Amendment bans anyone who participated in an insurrection against the government from holding federal office. Colorado banned Trump from the ballot based on this Amendment. Trump sued and the Supreme Court said that since Congress never passed any enabling legislation, the Amendment doesn't count. Based on that precedent, the Court could rule that the same holds for the Twenty-Second Amendment. Of course, there is not actually a requirement that Congress pass enabling legislation, although some Amendments explicitly grant Congress the power to pass laws to enforce that Amendment.
  
  
• The Vance/Trump Route: How about this? The 2028 ticket is J.D. Vance for president and Trump for veep. Could a twice-elected president run for vice president (or be appointed vice president)? The Twelfth Amendment says that no person ineligible to be the president is eligible to be vice president. However, some legal scholars have argued that "eligibility" is determined by Art. II, Sec. 1, Clause 5, and yes, a twice-elected president can be elected vice president. The paper linked to above makes that case in 57 pages with 226 footnotes. In this scenario, Vance/Trump runs and wins, then Vance resigns the presidency right after inauguration followed by Trump succeeding to the office of president. Then Trump nominates Vance to be vice president. Again here, the Supreme Court would have to rule on this.
  
  
• The Speaker Route: This one is slightly more complicated, but probably constitutional. The 2028 GOP ticket is Vance and, say, Ivanka Trump or someone else Trump trusts. On Jan. 3, 2029, the House elects Trump as speaker. This would require a compliant Republican majority, of course. There is no requirement anywhere for who may be speaker. The speaker doesn't have to be a member of the House and doesn't even have to be an American. The House could elect King Charles III as speaker if it wants to. After being inaugurated, Vance resigns. Then Ivanka also resigns. With the presidency and vice presidency both vacant, the order of succession places the speaker of the House next in line. So Speaker Trump becomes President Trump and then nominates Vance to be vice president. Of course, to pull this off, the plan would have to be public and people would have to believe it will be carried out as planned.

We're not trying to be predictors of doom here. We just wanted to point out that, fundamentally, there is a bug in the Twenty-Second Amendment. It should not have mentioned elections at all. It should have said: "No person may serve more than 10 years as president." This bug opens the possibility of succeeding to the presidency in some way other than being elected.

We think it is unlikely that Trump will find a way to remain president beyond January 20, 2029, especially given his physical and mental health. But if he tries it, it will almost certainly involve working within the system, and trying to find a loophole, as opposed to merely declaring himself president-for-life. This being the case, it's useful to keep in mind what to look out for. (V)