Below is my column in The Hill on the President stating that he is not joking about pursuing a third term. The statement lit up the media. However, it works better as a jump scare for liberals than a credible claim for the courts.
Here is the column:
The late Justice Antonin Scalia famously said that Congress does not “hide elephants in mouseholes.” His point was that courts are skeptical of using minor provisions in a statute to achieve sweeping new legal changes.
The challenge of stuffing an elephant into a mousehole came to mind this week after President Donald Trump said that he is “not joking” about considering a third term and that experts told him it is possible under the Constitution.
One often has to take such moments with a heavy dose of skepticism from a president who clearly relished handing snake-in-a-can soundbites to the media just to watch the resulting screams. If so, he was not disappointed. The media went into renewed vapors as commentators pronounced, yet again, the death of democracy.
However, given the president’s statement, it is important to be clear about the basis for this theory, which has long been something of a parlor game for law professors on how a president might be able to circumvent the two-term limitation imposed by the 22nd Amendment.
Let’s start with the language. Ratified in 1951, the amendment was passed ironically by Republicans who were reacting to Franklin Delano Roosevelt’s decision to break from the tradition of two-term presidencies by seeking a third term. The intent was clear. They believed that serving more than two terms exposed the country to the danger of a politician occupying the office for life or prolonged periods.
To prevent that, the amendment states:
“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.”
Notably, the language includes those who were not necessarily elected to the office but “held” the office for more than two years (presumably through succession to the office due to a vacancy).
Few seriously doubt the intent of the amendment to prevent any person serving a third term to force a change of leadership in the nation.
That is when the mousehole comes in. The amendment refers to a person being “elected.” Thus, some advocates claim that the amendment does not prevent a president from “serving” a third term — only being “elected” to such a term.
This strained interpretation would mean that the drafters were solely aggrieved by the thought of someone running for the office and not serving in the office. There is no compelling historical support for that interpretation.
Under this interpretation, a two-term president could engineer a third term by running for vice president and having the elected president then resign after the inauguration.
The problem with this tactic is another amendment. The 12th amendment states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
Trump could not run for vice president because he is ineligible to be president. Accordingly, he would likely be barred from many state ballots from running for vice president.
Yet, there is an even smaller mousehole. Trump could have two people run for president and vice president as stand-in officeholders while he could engineer his election as Speaker of the House of Representatives.
After the election, they could both resign and Trump would be third in the line of succession. Putting aside the considerable level of faith in both the president and vice president resigning, the maneuver would make a mockery of the constitutional design behind the amendments.
It would also make leading Republican candidates mockeries as types of “mini-mes” for Trump. Even the debate of such a maneuver before the election would demean figures like Vice President J.D. Vance as mere cutouts in a Constitutional sleight-of-hand.
The fueling of this talk also works in favor of those politicians and commentators who continue to claim that Trump is an autocrat committed to the destruction of the American democracy. It suggests that Trump is open to trashing constitutional traditions or language to achieve prolonged power.
In fairness to those advocating this theory, this is not an assault on democracy or a call for tyranny. It is an effort to use clever interpretations of the Constitution to allow for a third term. Voters would be aware of this maneuver when going to the polls (which is doubtful), and courts would have to uphold the interpretation (which is even more doubtful).
In the end, the powder is not worth the prize in raising this prospect. President Trump has carried off the political comeback of the century. His administration is set to make history with sweeping changes that continue to garner considerable support among the public. This claim will only undermine that legacy and the support needed to achieve it.
Despite all the media BS J.D. Vance will be the Republican candidate in 28.
…. until he is not.
Sorry Donny, While I am a Republican, and Voted thrice for you, I have to say that this stunt is more a deflection of the fact that the Congress and the SCOTUS need similar Term Limits. Adam Schiff is the current Poster Boy for Term Limits.
The system allows for Politicians to climb a Government ladder by jumping the rungs of; Representative (X terms) to Senate (X terms) so that they can virtually stay on the Hill to the end of their days. And the Incentives are obvious: FERs, Pelosi Tracker Activities, and the Biden 10% Two-Step.
What the hell are Mitch McConnell (R) and Maxine Waters (D) still doing there?
It’s as if the Hill has a 3rd. House, the House of Geriatric Care. -$$$ KA-CHING! $$$-
Senate (80+)
Iowa Charles E. Grassley 89 9/17/33 R
California Dianne Feinstein 89 6/22/33 D
Vermont Bernie Sanders 81 9/8/41 I
Kentucky Mitch McConnell 80 2/20/42 R
House of Representatives (80+)
CA-31 Grace F. Napolitano 86 12/4/36 Democratic
DC-AL Eleanor Norton 85 6/13/37 Democratic
KY-05 Harold Rogers 85 12/31/37 Republican
NJ-09 Bill Pascrell Jr. 85 1/25/37 Democratic
CA-43 Maxine Waters 84 8/15/38 Democratic
MD-05 Steny H. Hoyer 83 6/14/39 Democratic
SC-06 James E. Clyburn 82 7/21/40 Democratic
CA-11 Nancy Pelosi 82 3/26/40 Democratic
IL-07 Danny K. Davis 81 9/6/41 Democratic
TX-31 John Carter 81 11/6/41 Republican
CA-16 Anna G. Eshoo 80 12/13/42 Democratic
FL-24 Frederica S. Wilson 80 11/5/42 Democratic
https://fiscalnote.com/blog/how-old-118th-congress
Go here, sign the petition for your state. We CAN do this. http://termlimitsforuscongress.com
I agree with you in regards to Trump claiming he may attempt a third term – while some may find it amusing, I don’t see the purpose of giving Democrats and the media ammunition while making independent and undecided voters who voted GOP question their decision to vote for Trump.
However, as far as age goes, age does not equal mental competence – and youth does not equal intelligence and rationality.
AOC is more mentally competent than Chuck Grassley as we watch them serving on their respective committees? How about Pressley? Ilhan Omar?
While we’re adding age limits, why not raise the age of eligibility to something like 55? If we’re concerned because you believe many are serving with dementia, we should address at the same time concerns about the thoughtlessness of youth.
I believe that term limits in the legislative branch similar to those that exist for the executive branch would address any real problem. More importantly, it would curb those like McConnell and Pelosi over the years building themselves up into having positions of power to coerce their party’s candidates and members in how they vote after being elected.
100% of that is on the voters. Franklin was correct, and it very much appears that we could not keep “it”. If any structural changes need to be made, it would be to reverse some of the changes that were made to the Constitution by Amendment, for one example the change to popularly elect Senators. Otherwise, it’s on us, for better or (as the appearance is) worse.
Forget the law books. This is politics, not law.
One’s gotta learn to think strategically like a businessman instead of a politician. Or rather, think like Trump.
What is the easiest way to derail the democrats and the media who are tripping all over themselves, scrambling to attach the “lame duck” label?
You challenge the label. That energizes the media to talk about it, so “3rd term” is in the news instead.
AKA, lead, don’t follow.
BTW, if it could be done, the democrats would have done it already.
I think Trump is poking at Obama, in that the Biden Presidency was a 3rd term of Obama sans the ‘official’ declarations of the Office of the President. Of which gave Obama even more room to politically-philander behind the scenes.
So may Trump come 2028 and beyond with whomever takes the reigns.
The Democrats (DNC) showed us the way (They set the Table). What goes around, comes around.
Donny’s a Smart Cookie
President Autopen
a.k.a.: President Barack Obama’s 3rd. Term:
January 20, 2009 – January 20, 2017 Term I and II
January 20, 2021 – January 20, 2025 Term III (sans Joe Biden’s cover)
Not sure which “anonymous” you are, the TDS sufferer or the patriot, but you make an excellent point. That said, once JD is in office he will run his own show. Trump may wield influence but I really suspect that he will retire gracefully. Something that Obama, the traitor, would never dream of.
Thank you, I’m the decent one (“anonymous”), that uses good manners and Cites with Law or Journalist’s Articles credentials (give Them their due credits), to wit substantiate My findings and stances when possible. Of which I hope makes this Blog Jonathan et.al. has provided Us a palatable place.
That said, there are a number of Comment Contributors that make this space welcoming. My Hats off to them and to you Sir – much appreciated.
“once JD is in office he will run his own show. Trump may wield influence but I really suspect that he will retire gracefully. ”
Exactly correct. Where would Trump find a chump of the magnitude of Biden to get inaugurated, then spend four years as a brain-dead puppet? Trump is playing these clowns, and playing them well. I suspect that it is no coincidence that Trump chose to make this statement pretty much simultaneously with his tariff announcement – it makes for pretty good deflection.
You only get superior, magnificent political figures like Trump about once a century. Which is why Democrats, their media apparatchiks, and Democrat supporters have tried to kill him, imprison him, impeach him, and bankrupt him. They are determined to bring him down because he threatens their power, their insane ideology, and the system they’ve created that enriches them.
Despite EVERYTHING Democrats have done to try to destroy him, he’s leading, reforming, and positively changing the country at a pace unseen since FDR radically and permanently change the country for the bad. Trump is determined, unafraid, and indefatigable.
Trump is ONLY doing all of it out of a sense of patriotism and a desire to save the country for future generations. Same with Musk. Why else put up with the aggravation, the perpetual threats, the risk of assassination?
If Trump can figure out a way to run for a third term, I’ll crawl over broken glass to vote for him.
Just crawl over broken glass unconditionally. It’ll be good training for learning to deal with what trump is doing to the country.
Hard to rationalize a SCOTUS-fixed, low turnout election as the greatest political comeback ever, Turls…, but that aside…
This hiding the elephant in the mouse hole theory your side is putting out there right now is just the equivalent of the Pence overruling election results j6 nonsense from the ’20 election. It’s just the last stage of a multi-faceted plan. The real plan for stealing the election began yesterday and it goes like this: a) market manipulate a gigantic short sell op for his friends through abuse of tariff tax policy, b) blame the fall out on Biden, c) use the economic crisis that results as rationale to snatch Social Security and Medicaid in tricle down BS motivated smash and grab to try to lessen deficits for tax breaks for his friends, d) postpone the ’28 election because the country is in a ‘national emergency’ state…
So if you’re keeping score, that’s market manipulation, treason and fraud on an epic scale, which as we know, is just a normal day’s work for trumpie bear.
Party on, magats!!
Oh look, a disgruntled dem. Should have had a dem candidate with a brain, instead you got kamala. Direct your anger at the DNC.
Damn right I’m a disgruntled Dem…, but not for the reason you’re thinking. Then again, that gives you credit for thinking, which is clearly a stretch. So there’s that.
Sure blame trump. You dems failed miserably because of incompetence and skullduggery.
Stupidly you put up kamala, the dumbest candidate ever, and then walz, even dumber.
Nah Dems failed because they used black vote to get elected in ’20 and then backbenched them/her before asking Kamala for a miracle bailout at the very end of the race. And yes, after the SCOTUS bailed out trump.
Trump isn’t joking but he is trolling. Vance is his chosen successor.
A third Trump term will never happen. I’m surprised the idea is receiving serious attention.
Trump set the bait and the left went for it.
Every single time.
Trump loves to troll the MSM because he knows he lives rent-free in their heads.
He does it to deflect from whatever crisis he’s walked into.
Liked the Muybridge elephant, too! It will be an interesting addition to the constitutional argument.
This nonsense, like so much else, started in the law schools. Here’s a particularly egregious example from Yale Law School in 2008: https://slate.com/news-and-politics/2008/03/how-clinton-and-obama-could-run-together-and-take-turns-being-president.html
And we wonder why there are so many wretched ideas in circulation, just ready for the plucking by the opposition. There are no third terms.
It is so easy to troll the left.
The only thing holding our country together are the rules we still agree on.
Trump is not joking. He’s being reckless in thinking “the rules don’t apply to me”. They most assuredly will.
Dear Mr. Turley, first of all, I would like to offer an apology to GEB, Old Man from Kansas, and Old Fish. It was absolutely disgusting reading the vile comments directed to these dear folks from the liberals who read and comment here. I love reading their ideas that are well thought out and are backed up with facts. Regarding the spring election here, the Republicans really got what they were hoping for: picture i.d. when voting as part of the state constitution. The new liberal judge, Susan Crawford ran on defeating this. Now she can’t touch it. Sure, having Brad Schmiel on the court would have been icing on the cake, but knowing she can’t take this away is a huge defeat for the Liberals. So, all she has left to please her base is the killing the helpless, unborn children.
The Wisconsin voter ID amendment can still be changed if Wisconsin voters choose to do so. With a liberal majority in the Wisconsin Supreme Court, they could amend it again.
Republicans really needed to win the Supreme Court position. It was their primary goal. Voter ID was just a consolation prize.
“The Wisconsin voter ID amendment can still be changed “
Why would anyone want to revoke Wisconsin’s voter ID law recently passed? The only significant reason to do so is so Democrats can cheat.
Hey George, wake up. The vote for picture ID being required to vote was 63% to 37 % in favor. You probably know this but you made your comment anyway. However, I could be mistaken in my assessment of the possibility that you might be informed. The latter is the most likely. My suggestion is that you just nestle in beside the pool and read your Trans comic book.
Her primary focus was not that. It was a footnote in her campaign. She ran specifically on allowing the legislature to gerrymander the two republican districts out of existence reducing the Republican seats win the House. She said so in every campaign speech. She is just another democrat traitor.
I wonder if Crawford will recuse herself if gerrymandering new Democrat seats reaches the court? That’s a rhetorical question by the way.
Rhetorical or not, she specifically stated that she was running for the seat in order to facilitate the gerrymander process.
Dems need to learn how to laugh again. Doling out gentle mockery shows that you haven’t been thrown off-center.
I think Trump is a master showman besides being a master politician – something he came late to in life. He knows that a “lame duck” presidency tends to have people wait out the changes he wants to implement and the best way to counter this is to threaten to hold office for another term. Trump assiduously obeys the law, all the while he is attacking it as this or that. He sat in a courtroom everyday in New York and complied with his gag order despite legions of legal experts saying it was all wrong. Like Obama during the Biden-Harris debacle often played the elder statesman role, Trump will do the same after JD Vance is inaugurated. Trump’s “elephant” will keep the mice, that is, the liberals, from getting through the hole.
To watch the resulting screams is reason enough for him to say it. That is predictable.
Of course there is probably a man living on Martha”s Vineyard who is taking notes.
Trump will Continue…to LIVE In Fascist Democrat Heads FOREVER!
Trump is a MASTER at trolling idiot Democrats
I just don’t get why people back Democrats who HATE America
Loving Illegals is absolute PROOF how much Democrats hate America
Voting Democrat at this point is EVIL…not even debatable! It is like fighting for the South in the Civil War!
The PARTY should be ABOLISHED! 2 Civil Wars…2 TOO MANY!
Trump knows how to make the DEMS. Main Street Media, Left Wing Radicals etc go crazy and it works.
“ His administration is set to make history with sweeping changes that continue to garner considerable support among the public.”
Clearly, this administration is struggling and has made quite a name for itself for being ineffective. The idea of Trump running for a third term seems unrealistic. When Turley downplays the possibility of a third term, he misses an important point. Trump’s plans and the changes he wants to implement would only last for a short time if he can’t run again. His vision relies on him staying in power long enough to make lasting changes. Four years isn’t enough to ensure that the things he wants to change will stick.
With the midterm elections approaching, it seems likely that Democrats may regain control of Congress, especially if Trump’s policies on tariffs—essentially taxes on imports—continue to cause problems. Historically, every tariff policy put in place by Republicans has led to significant losses for them in Congress. Trump promised to lower prices, but these tariffs will likely increase costs.
Alongside this, government job cuts and cuts to Medicaid for millions of people could lead to higher unemployment and poor government services, which would be bad news for Republicans in the midterms. They are starting to feel concerned about their chances.
Elon Musk is already being talked about as possibly stepping down from his role as a “special government employee” because he’s turning into a real headache for Republicans and Trump. Look at how the Wisconsin election went and those Republican town halls packed with frustrated voters.
Daaaa…..
LOL…you voted for the Dumbest Candidate of any western country…Kamala…I wouldn’t lecture people
Trump, Musk, etc are possibly the BEST administration in HISTORY! Democrats PREFER to make people poor so they need government funding…after paying themselves $200k a year to do it.
I assume you wish to remake America into failed San Francisco, Newark, Bridgeport, Ct, Baltimore, etc?
Why do Democrats HATE America so Much?
How did those Florida elections go? Wi was judge in a failed STATE! BTW Wi voted for PHOTO ID….
Trump will FORCE all Elections to be 1 day, in person, with ID
Then Democrats will lose 99% of Elections…no more BALLOT manufacturing!
Rabble Rabble!
QUIT posting lies about Musk. Musk is stepping down AFTER his term ends. POLITICOL lied about Musk- you took the bait GEORGE!!
You write a lot of words, but you miss with logic.
Nature will take care of Trump. No one lives forever.
No one but dems took his statement seriously; think er played them to see their reaction. Just as Turley is doing with this useless opinion.
Read on and get played.