President Trump frequently says he’d like a third term as President of the United States. Sometimes he says he’s joking, and the 22nd and 12th Amendments to the U. S. Constitution seem to limit presidents to two terms, only. But some of his aides say Trump is serious in wanting a third term, and they are looking for loopholes in the 22nd Amendment. Whether they’ll succeed or fail remains to be seen, but those who oppose a third term for President Trump, and those Trump supporters who rightly see that whatever means are used to give him a third term may someday be used to help a liberal Democrat hold on to the presidency, should be most concerned.
President Trump’s latest “joke” about winning a third term in the White House came at the end of his speech on July 24 at the White House Correspondents’ dinner. He concluded his remarks by donning a red baseball cap, saying, “Trump 2028.” These caps are sold by the Trump Organization for $50 apiece.
I support term limits for presidents and governors. The president is the commander in chief of our national armed forces, and governors similarly command their respective states’ national guards. In other words, they control a great deal of firepower. That is sufficient reason—to me, at least—to limit their access to power.
The 22nd Amendment, added to the Constitution in 1951, says, “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.” So President Lyndon Johnson, who served out only the last 14 months of President Kennedy’s term before being elected to a full term in 1964, could have been elected to a second full term in 1968 had he chosen to run. On the other hand, President Ford, having served well over 2 years of President Nixon’s second term, would have been barred from seeking a second full term in the White House in the White House had he won a first full term in 1976.
To repeal the 22nd Amendment or at least modify it to allow for a third presidential term would require the approval of 2/3 of each House of Congress and 3/4 of the state legislatures. Nobody thinks that is possible before 2028.
But supporters of a third term for President Trump and who are seeking a loophole in the 22nd Amendment note that while it says nobody may be elected to more than 2 terms as president, it does not say that nobody may serve more than 2 full terms in the White House. And there’s at least one way for someone to become president without having to win a pesky election.
The most obvious non-elective route is through the vice presidency. Indeed, of the 45 men who’ve been president, 8 were vice presidents who gained the White House following the deaths of their predecessors, and a 9th—President Ford—became president following President Nixon’s resignation.
President Trump, having twice been elected president, is obviously barred from being elected a third time. But what if he were elected vice president with the understanding that whoever was elected president would resign and turn the Oval Office over to Trump so that he could have a third term after all?
The general consensus of legal opinion on this subject is that such an arrangement would be an unconstitutional violation of the spirit and the purpose of the 22nd Amendment. Moreover, say critics, the 12th Amendment to the Constitution is an additional barrier to securing a third term for a president who’s already served 2.
The 12th Amendment was added to the Constitution following the disputed presidential election of 1800. The Constitution initially said that every member of the Electoral College chosen by the state governments to select the president would have 2 votes to cast for 2 different presidential candidates. Whoever won the support of the largest majority of electors would win the presidency, with the first runner-up becoming vice president.
In 1800, a majority of the presidential electors cast their votes for Thomas Jefferson for president and his running mate, Aaron Burr, for vice president. But because the Constitution did not permit presidential electors to designate whom they wanted for each office, the House of Representatives had to interpret the election outcome as a tie between Jefferson and Burr for president, and ultimately selected Jefferson for the top job. And to avoid future confusion, the Congress and the states added the 12th Amendment, which allowed electors to specify who they wanted for president and who for vice president in future elections.
The 12th Amendment also says that “No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” Opponents of a third term for Trump cite that provision as saying that having served two terms as president, he would therefore be ineligible for the presidency, and thus ineligible for the vice presidency as well. So he couldn’t be put on a presidential election ticket under any circumstances. But Trump’s supporters say that the 12th Amendment referred only to the eligibility requirements in the Constitution concerning age, residence, and the requirement that the president be a natural-born citizen. It says nothing about the number of terms anyone has served as president, and is therefore not a barrier to Trump.
In essence, therefore, the general consensus of legal opinion holds that Trump is barred from a third term in the White House by both the 22nd and 12th Amendments to the Constitution. But his supporters nonetheless argue that, however much the possibility of a third term violates the purposes of the amendments, the actual words of the 22nd Amendment only prohibit election to a third term, not actual service in a third term attained by other means. This loophole may be small and fanciful, but no court has ever ruled it invalid. And until the Supreme Court definitively interprets the 22nd and 12th Amendments to bar actual service in a third term as well as election to a third term, President Trump’s minions will seek to get him through the loophole. Should he fail to win a third term, it will not be for lack of trying. This should be a matter of grave concern not only for those who oppose a third term for President Trump, but also for those who may want to see him returned to office in 2028 yet realize that whatever means President Trump and his minions use to retain the presidency may also be used someday by a liberal Democrat—a President Newsom, for example, or a President Harris or Pritzker—as well. What goes around, comes around.
Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024). He was Mayor pro-tem of Stephenville from 2008 to 2014. He has served on the Board of Directors of the Stephenville Economic Development Authority since 2018, and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015. He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District. Views expressed in this column are his and do not reflect those of The Flash as a whole.
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