“Will the Supreme Court allow President Trump to run for a third term? I fear this happening.” — Neal C.
Hi Neal,
Although the Roberts Court has been steadily empowering Donald Trump in his second term, I would be surprised if the justices let him run for a third term if he tries to do so. But it’s important to take the question seriously. So let’s do that.
The 22nd Amendment to the Constitution says (in part): “No person shall be elected to the office of the President more than twice.” Trump has been elected twice. Case closed, right?
It should be.
But the case has never been opened before. That doesn’t mean it’s an open question in the sense that there are equally meritorious arguments on both sides, because there aren’t. It just means the courts haven’t been called on to decide it. Of course, there are any number of questions that courts haven’t answered because they’re so obvious that no one has asked. This may well be an example of such a question.
But the courts can sometimes make simple things more complicated than they have to be.
But the courts can sometimes make simple things more complicated than they have to be. Earlier this year, a Trump appointee on the Denver-based federal appeals court declined to join her colleagues in effectively ruling out a third Trump term. The subject arose indirectly in a lawsuit trying to keep him off the 2024 ballot under the 14th Amendment’s insurrectionist ban (which the Supreme Court resolved in Trump’s favor last year, enabling his second term). The appeals court panel said in February that the suit was moot, noting that the 22nd Amendment “mandates that President Trump cannot be elected to another term after the current one,” and so the possibility “of a future presidential candidacy of President Trump is, at best, highly speculative.”
Trump appointee Allison Eid agreed with her colleagues that the suit was moot. But she said it was unnecessary to rely on the amendment to reach that conclusion. “We should be reluctant to opine on a novel and complex constitutional question when doing so is not essential to resolve the case,” Eid wrote, adding that she expressed “no view on the proper interpretation” of the 22nd Amendment. So while she essentially said her colleagues made the matter more complicated than necessary, in doing so she injected needless uncertainty into the subject by deeming “complex” a matter that appears to be settled by the plain text of the Constitution. Getting back to what the Supreme Court would do if faced with the third-term question, it’s always dangerous to guess what the court will do about anything. But I think that that insurrectionist ban case, Trump v. Anderson, can be seen as a mirror image of the 22nd Amendment issue in a way that would keep Trump from running for a third term. In the Anderson case, there was a sense that the justices would inevitably find a way to keep Trump on the ballot, even if the reasoning for doing so was unclear as the appeal proceeded. In the end, the court’s reasoning in Anderson was muddled, but the result of keeping Trump on the 2024 ballot was unsurprising. Yet, to let Trump run for a third term, in the face of the Constitution’s plain text, would be shocking in a way that the Anderson result was not (even if the Anderson ruling was incorrect). I understand that that isn’t enough to fully settle the fear you’ve raised, but it’s impossible to do so on any issue until the court speaks. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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