Constitutional Paradox and Latent Insurrection: Addressing Third-Term Trump

Illustration by Will Allen/Europinion

The entrenched sovereignty of its Constitution governs the political systems of the US. Among its 27 amendments added post-1788 ratification, one holds particular significance to a divisive, Republican populist: the 22nd. Enshrining that “No person shall be elected to the office of the President more than twice” in the laws which serve as the framework for US governance counters Trump’s wishes to run for a third Presidential term. He has, however, insisted there are “methods” to subvert the 22nd amendment, with Trump informing NBC News he was “not joking” when it came to achieving another term in office - a statement that doesn’t sound at all menacing. 

While the brilliant New Deal agenda of Franklin D. Roosevelt powered him to serve four successive terms between 1932 and 1945, Congress passed the 22nd Amendment two years after his death to ensure no President could ever pull off such a feat again. The Amendment is ironclad: Trump cannot legally seek election for the office of President of the United States again. However, this doesn’t mean he can’t become President again, according to legal scholars Bruce G. Peabody and Scott E. Grant. In a 1999 article for the Minnesota Law Review, they argued that if an individual assumed the Presidency due to a line of succession, they could theoretically circumvent the 22nd Amendment. In hypothetical contemporary practice, that would likely manifest as J.D. Vance running for President in 2028 on a Vance-Trump ticket and then handing over to Trump after assuming office, meaning Trump was never “elected to the office of the President more than twice” instead assuming it. Given Trump’s illustration of Vice-President Vance as “highly capable” yet not his successor, this hypothetical loophole casts the 47th President’s words in a far more strategic light.

Illustration by Will Allen

Whilst this appears beyond nightmarish, another constitutional amendment seemingly prevents such a nefarious circumvention of the Constitution’s design. The 12th Amendment declares that “No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States,” creating a legal paradox: the 22nd Amendment unintentionally opens the door for Trump’s return, which the 12th Amendment subsequently slams shut. If Trump intended to use Peabody and Grant’s strategy in 2028, it would inevitably end up in the Supreme Court, where it is highly doubtful even the most overtly conservative judges could interpret such endeavours as anything but a subversion of the Constitution. 

Other potential solutions to Trump’s third-term desires persist, however. The US Constitution has been amended 27 times since its ratification, allowing the tabling of an amendment to  enable Trump to run for the presidency again. Trump’s own Attorney General, Pam Bondi, admitted that “unless [Congress and the States] change the Constitution,” Trump cannot run again in 2028, suggesting this is the most probable solution for Trump. Yet, the process does require a two-thirds majority in both chambers of Congress, meaning unless Trump can somehow convince Democrats who believe he ought to be rotting in a prison cell, as opposed to lounging in the Oval Office, to allow him to run again, then the amendment isn’t going to suffice. Nonetheless, this hasn’t deterred Republican Congressman Andy Ogles, Representative for Tennessee’s 5th Congressional District, from tabling an amendment to “allow Trump to serve a third term” anyway  - a potent reflection of the distinct separation Trump and many of his allies have from political reality. 

Regrettably, we still have to consider the prospect of insurrection. It would be beyond troubling if we saw the incitation of a Bastille-esque storming of Capitol Hill to seize power.  Yet, considering the not-so-recent past, it would be wholly unsurprising. If Trump were to fail in all other pursuits in achieving a third Presidential term, few would doubt his willingness to mobilise the MAGA legions as he did for the January 6th Capitol riots. Trump biographer Michael D’Antonio attributes his disposition of anti-constitutionalism and avid power lust to his father, Fred Trump, from whom he learned “by osmosis” to be a “killer” or a “king.” If  Trump’s presidency is his kingship, then the sanctity of the Constitution is in doubt. 

There will no doubt be infighting within Trump’s inner circle as to who gets to replace him, given the constitutional likelihood that he will not be able to run again in 2028. Envious populist cravings for power seem to fester amongst Trump’s allies, and thus it is doubtful there will be a clean thread through his political lineage. Whilst Vance appears the obvious candidate, given his more clearly defined worldview and vice-presidential status, if Trump is to adopt the Peabody and Grant strategy, he stands as the obvious gambit. Such a move would strain their relationship unprecedentedly, with consequences undeterminable. 

All that is certain is that come the beginning of the 2028 election cycle, America will likely erupt into a constitutional, legal, and potentially physical battleground. The harm to US democracy is inevitable, and the outcomes are dangerously beyond uncertain.