Trump is 'not joking' about a 3rd presidential term. But is it possible? Here are the loopholes

US President Donald Trump - File Photo

US President Donald Trump said on Sunday that he was not joking about the possibility of  seeking a third term,  further reiterating the point again in a press interaction at the Oval Office on Monday. His highlighting of public support for a third Trump Presidency and his emphasis that 'there's a way you can do it' despite the US Constitution's  limitation of  a maximum of two terms for any President has raised a new legal debate on how such a gambit could work.

When questioned about whether it could be an Obama-Trump faceoff in 2028 if a legal loophole is indeed found, Trump went so far as to say that he "would love that." He added that such a contest would be a "good one". While MAGA supporters are gung-ho about the  idea, the legal and constitutional barriers to a third Trump term are significant.

US Constitution and Presidential term limits

The 22nd Amendment to the U.S. Constitution, ratified in 1951, explicitly states: "No person shall be elected to the office of the President more than twice..."

This amendment was introduced after Franklin D. Roosevelt broke tradition and won four consecutive terms (1932, 1936, 1940, and 1944). The amendment was pushed through the US House of Representatives and Congress by Republican lawmakers in 1947 and ratified on February 27, 1951 after 36 of then then 48 US states ratified it. Since then, every president has been bound by the two-term rule. The amendment makes it clear: a third term is constitutionally prohibited.

Can Trump overturn the 22nd Amendment?

If Trump is legally eyeing a third term, he would need to either repeal or modify the 22nd Amendment, which is a near impossible task. To do so, he would need to pass a new constitutional amendment that repeals the 22nd Amendment, which would require:

1. Approval by two-thirds of both the House of Representatives and the Senate.
2. Ratification by 38 out of 50 US states.

Republicans hold a razor-thin 218-213 majority in the House and a 53-47 majority in the Senate. Republicans control 28 state legislatures.

The chances of making it happen this way are bleak in an era of intense political polarization between Democrats and Trump’s Republican Party.

Legal loopholes Trump could exploit

While the Constitution explicitly prohibits re-election for a third term, it doesn’t entirely rule out a former two-term president serving again in a different way.

The 22nd Amendment bars a person from being elected president more than twice, but it does not prevent a former president from becoming vice president. Under the 12th Amendment, the vice president is the next in line if the sitting president dies, resigns, or is removed. If Trump were to run as a vice presidential candidate and his running mate later stepped down, he could assume the presidency once again.

In an interview with NBC, Trump said one possibility would be for his vice president, JD Vance, to run for president in 2028 with Trump as his vice presidential candidate. Vance would then resign as president if he wins, paving the way for Trump to return to the White House.

When asked, during the interview with NBC, about a possible scenario in which JD Vance would run for office and then pass the role to Trump, the latter responded that “that’s one” method. “But there are others, too,” Trump added.

While there is no explicit constitutional ban, legal scholars argue this could be challenged in court. However, the Supreme Court has never ruled on such a scenario, leaving some legal ambiguity.

Bruce Peabody, a professor of government and politics at Fairleigh Dickinson University and lead author of that article, said it isn’t obvious that Trump is limited to eight years of service.

“The weight of historical evidence, legal analysis and the constitutional text add up to make this the most defensible reading,” he told Wall Street Journal.

Yale University constitutional law professor Akhil Reed Amar, speaking to Wall Street Journal, mentioned another way that Trump could explore to extend his presidency.

"If another Republican is elected president next time, that person could appoint Trump secretary of state. It is possible Trump could then return to the White House if the president and vice president resigned. It is possible Trump could assume the presidency if all others ahead of the secretary of state in the line of succession step aside," Amar said.

The third scenario that can be taken into account is Trump declaring a ‘national emergency’. Trump has repeatedly spoken about invoking emergency powers, especially regarding border security and election laws. In an extreme scenario, he could claim that the country is in a national crisis. As a result, elections will need to be postponed or modified to keep him in power. However, such an approach is likely to face immediate legal challenges.

What do constitutional experts say?

Wayne Unger, a law professor at Quinnipiac University, said the Constitution was clear that presidents are limited to two terms of four years each. He said that while that had not been tested in court, any challenge by Trump would likely be unsuccessful.

"I would predict the Supreme Court to say nope, it's clear, two terms of four years each, Donald Trump, you cannot run for a third," said Unger, who teaches constitutional law.

Meanwhile, some scholars say there is no such thing as a vice-presidential loophole. They point to the 12th Amendment, which states “no person constitutionally ineligible to the office of President shall be eligible to that of Vice President of the United States.”

“You can’t put someone in that office who can’t serve as president if he has to step in,” Matthew J. Franck, a senior fellow at the Witherspoon Institute, a think tank in Princeton, N.J said, as quoted by Wall Street Journal.

Amar voiced a similar viewpoint. “Since you’re not electable as president, you’re not eligible to be president, and therefore you’re not eligible to be vice president,” he told Wall Street Journal.

He, however, noted that it is possible Trump could attempt to extend his presidency another way. If another Republican is elected president next time, that person could appoint Trump secretary of state, he said. It is possible Trump could then return to the White House if the president and vice president resigned, Amar said. He added that it is possible Trump could assume the presidency if all others ahead of the secretary of state in the line of succession step aside.

A 1999 Minnesota Law Review article called “The Twice and Future President” deep-dived the history of presidential term limits and noted that text of the 12th Amendment was ambiguous enough to potentially leave the door open to a vice-presidential run by a term-limited president.

Political challenges

Even if Trump attempted any of the legal manoeuvres, he is likely to face stiff challenges from Democrats, the courts and possibly from even within his own party. Depending on how Trump's popularity is at the end of his second term, key Presidential hopefuls could possibly raise internal opposition, in a way that Trump's huge popularity graph doesn't allow at the moment.

Whatever the legal challenges, by refusing to deny the possibility of a third term and publicly discussing loophole options, Donald Trump  has once again thrown a new political googly into the American electoral system, raising a heated debate on a topic that many had assumed could never be opened.