“The 22nd Amendment states that no person may be ELECTED to the presidency more than twice, but it does not prohibit someone from SERVING as president for more than two terms. If the 2028 elections were not held, or if they were deemed invalid by the Supreme Court, could President Trump continue as president in an extended second term?” — Jim
Hi Jim,
It’s true that the 22nd Amendment refers to being elected. But it’s not the only constitutional constraint keeping presidential service to two terms.
The hypothetical scenarios you raise are difficult to precisely answer because they depend on the circumstances and what the rest of our government would look like at the time. But if we are broadly considering scenarios in which the executive and judicial branches fail to do their duties, then the legislative branch has a role to play — including, but not limited to, exercising its power to impeach and remove the president.
That’s why I say that it would depend on what the rest of our government would look like at the time, because today the president has a compliant Congress that functions as more of an arm of his authority than a check on it.
Take House Speaker Mike Johnson, who has brazenly refused to swear in Representative-elect Adelita Grijalva, an Arizona Democrat who won a special election in September and has made it clear that she would provide a pivotal vote to release the Jeffrey Epstein files, which the Trump administration has resisted and, by virtue of his servility, Johnson has resisted, too. (Johnson has cast doubt on Trump’s ability to run for a third term, for whatever that’s worth, and while it’s better for him cast doubt than not, as with all politicians it’s better to watch what he does rather than what he says.)
Getting to additional legal constraints on presidents serving longer than two four-year terms, the Constitution specifies four-year terms, and the 12th Amendment says that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” That would further complicate any gambit to smuggle Trump back into the presidency through the vice presidency.
All of this puts us back in the queasily familiar position of asking: What would the Supreme Court do?
On that note, I’ll reassert a point that I made in answering a similar previous question, which is that we can look to the court’s ruling in Trump v. Anderson, which approved the president’s latest run despite the Constitution’s insurrectionist ban. I happen to think the court got that one wrong. But there was a strong sense throughout the litigation that the justices would find a way to keep Trump on the ballot, and they did. If we find ourselves in a situation in which Trump is seeking to stay in office past 2028, I think that would present a mirror image of the Anderson case: He would be the one facing an uphill battle at the court. While the justices seemed to see themselves as sensibly rejecting a novel challenge that raised daunting consequences in the Anderson case if they were to rule against Trump, they could see themselves as dealing with the opposite issue if he were seeking to hold on to power in the face of a clear and common understanding that presidents get two terms and that’s it. We can never be sure what the court would do, and it’s reasonable and important to keep raising these questions. But there’s plenty of constitutional damage the second Trump term has done and will continue to do before getting to 2028. Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.
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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