Donald Trump speaks to voters during a visit to a caucus site at the Horizon Event Center on Jan. 15, 2024, in Clive, Iowa. (Photo by Kevin Dietsch/Getty Images)
President Donald Trump is “not joking” about a third term.
Since this shocking and constitutionally tenuous admission, pundits and journalists from both sides of the political aisle have been abuzz with commentary.
The short answer as to whether Trump can be elected for a third term is no. The 22nd Amendment expressly forbids a two-term president from being elected to a third term. So there. Discussion over. Challenge to long-held constitutional beliefs averted. No need to discuss this issue further.
However, this issue is not that simple. In fact, it is rather complex.
Language matters when it comes to the Constitution. The 22nd Amendment’s use of the term “elected” precludes Trump from being elected for a third term, but it does not create ineligibility for unelected paths to the presidency. Looking at you Gerald Ford. As Trump provocatively stated “there are methods” to achieve such an outcome.
In the classroom, New Hampshire civics teachers should take this opportunity to discuss the interactions and limitations of the 12th, 22nd, and 25th amendments. While currently untested, these constitutional ramifications should be explored by the young minds about to take hold of the reins of America’s republic.
The 22nd Amendment
Constitutional theories about how a two-term president could return for a third term have been postulated before. This was evident in 2008 when Bill Clinton was a potential addition to a Clinton-Clinton Democratic Party ticket. Such a return to the Oval Office for any two-term president is predicated on an issue found within the interplay of the 12th and 22nd amendments.
Following the four elected terms of Franklin Delano Roosevelt, Congress moved to ratify the 22nd Amendment, setting the current constitutional limit at two presidential terms. The amendment states “[n]o person shall be elected to the office of the president more than twice…”
This language clearly forbids a president being elected to a third term via the Electoral College system. What is not clear in this language is any limit placed on the election of a vice president. The omission of election-based language for the vice president creates a constitutional scenario where a twice-elected president is eligible to seek out a term as vice president. Once in office, all that would need to happen is a presidential resignation and the vice president would assume the higher office, unelected for a third term. All along not running afoul of the 22nd Amendment.
If Trump pursues this theory and it prevails in the federal court system, it could set a precedent allowing Democrats to do the same in the future with their preferred candidate or potentially enable Barack Obama, George Bush, or Bill Clinton to seek a third term.
The 12th Amendment
After Congress tied 35 times while trying to elect the winner of the election of 1800, it surmised a solution to avoid confusion surrounding separate electoral ballots for president and vice president. The result of which was the 12th Amendment.
Putting aside a nuanced discussion about the changes made to the presidential ballot system, the most germane part of the 12th Amendment is its last sentence, “… no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
Clear as day, if an individual is ineligible for the presidency, he or she cannot become the vice president. However, it is not that clear for a few reasons. The first reason being that the 12th Amendment was written 150 years prior to the 22nd Amendment and term limits did not exist for the president. Although they were discussed at the Constitutional Convention and within Federalist 72 by none other than Alexander Hamilton, a man who was chastised as a monarchist in his day. The ineligibilities mentioned in the 12th Amendment pertain to the original qualifications of the presidency; age, citizenship, and residency.
The original intent and text of the 12th Amendment does not include any prohibition against a president seeking a third term. Even if the word election appeared in this amendment, the omission of election-specific language in the 22nd Amendment for the vice president would create substantial vagueness and constitutional uncertainty.
Other paths to the Oval Office
There are other theorized paths and constitutional loopholes Trump could exploit to sit behind the Resolute desk for a third term. Using the language of the 25th Amendment, The Presidential Succession Act, and a few strategically placed political allies, a member of the executive Cabinet could ascend to the presidency. A feat of adept and complex political maneuvering, but given the way Trump has D.C. on its heels, not an impossible outcome.
Trump could also strong-arm a partisan Congress and state governments into passing a 28th Amendment to overturn the 22nd, allowing him to be elected to a third term. This process is highly unlikely to yield beneficial results, as it requires significant supermajorities from Congress and state governments. Trump could also just run again, without any changes to the Constitution and make the claim that he is running to represent the mandate of the people. A term he and his allies have grown fond of using during his second term.
In the New Hampshire civics classroom
Understanding the nuances of the Constitution’s amendments is vital for an informed electorate. The potential loopholes in the 12th, 22nd, and 25th amendments highlight the complexities that challenge long-held political and democratic beliefs.
By discussing these issues in New Hampshire civics classes, students will gain the critical thinking skills necessary to navigate, amend, and safeguard America’s constitutional republic. Educating young minds about these intricacies ensures they are prepared to engage in meaningful civic discourse and approach constitutional issues head on.
