The 22nd Amendment

[LetMyPeopleVote]

39. Tamping down the third term hype for Trump (good legal analysis as to why trump cannot run for third term)

Believe or not, this issue was discussed a while back when there were discussions about Bill Clinton running as vice-president on a Gore-Clinton ticket. The thought was that Gore would resign after the election and President Clinton could serve a third term. This concept was discussed and rejected.

The three ways that trump could run for a third term (i) a constitutional amendment, (ii) trump running as vice president and then have his running mate resign and (iii) trump becoming speaker of the house and then the POTUS and Vice President resigning.

A constitutional amendment is not likely. https://upload.democraticunderground.com/?com=view_post&forum=1014&pid=3380306 It is unlikely that such an amendment could get through congress much less be ratified by the required number of states.

The third option has so many variables that it is also unlikely. trump would have to be appointed/elected as Speaker and then both the POTUS and the VP resign. This option does not have the 12th Amendment issue but has so many variables that it is unlikely

The 12th Amendment is clear that no one can run as VP if they are not eligible to run as POTUS. I agree with the legal analysis set forth below.

https://bsky.app/profile/derektmuller.bsky.social/post/3llmjzwnvdc2l

Link to tweet

https://electionlawblog.org/?p=149214

As I told the Associated Press:

Derek Muller, a professor of election law at Notre Dame, noted that the 12th Amendment, which was ratified in 1804, says “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

Muller said that indicates that if Trump is not eligible to run for president again because of the 22nd Amendment, he is not eligible to run for vice president, either.

“I don’t think there’s any ‘one weird trick’ to getting around presidential term limits,” Muller said.

In addition, pursuing a third term would require extraordinary acquiescence by federal and state officials, not to mention the courts and voters themselves.

He suggested that Trump is talking about a third term for political reasons to “show as much strength as possible.”

Now, there’s no question there is potential constitutional ambiguity here, as Professor Brian Kalt has discussed. But scholars like Professor Michael Dorf a quarter century ago were bolstering the idea of a Gore-Clinton ticket in 2000:

Thus, if Clinton were to be elected Vice President, and ascend to the Presidency based on, for example, Mr. Gore’s resignation, then nothing unconstitutional would have occurred. Clinton would have been elected to the Presidency only twice — though he would serve as President thrice. Under the Twenty-Second Amendment, that is perfectly permissible.

. . . But in seeking the Vice-Presidency — a job, in John Nance Garner’s unforgettable phrase, “not worth a bucket of warm spit” — Clinton would hardly be bidding for dictatorial powers.

Similar claims were made by Professor Brian Gray and elsewhere. But in my earlier scholarship, I found this interpretation weaker than the one advanced by Matthew Franck:

It follows from the 22nd Amendment that Bill Clinton, being “constitutionally ineligible” to be elected president, is ineligible to become president by another route. He is, in short, ineligible to be president, and therefore ineligible to become vice president under the 12th amendment.

I agree. But it’s worth noting that if–and I think it’s still a big if–such a gambit arose, there are tremendous complexities in its implementation. Not the least of which is the fact that after Trump v. Anderson, I believe the Court expressly left open the opportunity for states to review qualifications of presidential (and vice-presidential) candidates outside of the 14th Amendment and exclude candidates on that basis. Vice presidential nominations and ballot access deadlines for them occur in late summer, giving an exceedingly truncated window for review–and, frankly, one that may leave a major party without a vice presidential candidate on the ballot in several states with the approval of the United States Supreme Court. (Setting aside, of course, the will power of someone like J.D. Vance relinquishing the presidency.)

I really enjoy Professor Hasen's election law blog. This article made me smile.

Finally, I doubt that trump will live long enough for these options to be necessary.