Trump won’t let the 22nd Amendment stop him and his ambitions for a third term
Last week, on his way to Asia, President Trump said he “would love” to run for a third presidential term. He added, “Am I not ruling it out? You’ll have to tell me. All I can tell you is that we have a great, a great group of people, which [the Democrats] don’t.”
That followed a comment made a week earlier by Trump ally Steve Bannon, that there “is a plan” to keep Trump in the Oval Office beyond 2028.
Some may be tempted to write off such talk as just some attempt to “own the libs” or stoke enthusiasm among the MAGA base. I think that would be a mistake.
By raising this possibility, the president and his allies are planting the idea in a way that gives the American people a chance to get used to it, so that if — and when — it happens, it will not seem so shocking. In addition, it is a way of putting the Supreme Court on notice that a case may come its way that will require creative interpretation of the Constitution’s 22nd Amendment that limits any president to two terms.
Members of today’s court have already shown themselves willing to be creative in their interpretation of other constitutional provisions to serve Trump. The most glaring example was their 2024 decision that turned the 14th Amendment prohibition of insurrectionists from serving as president on its head, allowing Trump to stay on the ballot.
And, if that weren’t enough to show their commitment to a Constitution-be-damned, Trump-protecting jurisprudence, five months later they ruled that a president or ex-president cannot be charged with a criminal offense for his conduct in office. That decision, Supreme Court Justice Sonia Sotomayor said, made “a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
For a court willing to make such rulings, shutting down most of Trump’s legal troubles, it will not be much of a stretch to twist the 22nd Amendment to help him remain as president even longer.
Even some of Trump’s most fervent allies don’t want us to see talk about a third term. They insist that it could not happen without a constitutional amendment. Take Speaker Mike Johnson; on Oct. 28, when reporters asked him about what the president said, the Speaker wrote it off entirely, calling the idea another demonstration of the president’s trolling of Democrats and the liberal media.
Johnson added that he doesn’t “see a way to amend the Constitution because it takes about 10 years to do that … to allow all the states to ratify what two-thirds of the House and three-fourths of the states would approve. So, I don’t, I don’t see the path for that.”
One day after the Speaker of the House made his comments, the president offered a bit of classic Trumpian double speak when he said, “You know, based on what I read, I guess I’m not allowed to run.” Then, opening the door that he just seemed to close, Trump added, “So we’ll see what happens.”
“We’ll see what happens.” This, as CNN explains, has long been the president’s “go-to phrase … for saying absolutely nothing while simultaneously ruling absolutely nothing out.”
If we have learned anything in the last decade, it should be that the president doesn’t let the words of the Constitution stand in his way. Moreover, they also don’t seem to trouble the conservative majority on the Supreme Court.
Since the end of his first term, the court seems to have turned decidedly MAGA. As law professor Michael Dorf puts it, “The Court’s conservatives appear not to recognize the profound threat that the second Trump administration poses to constitutional democracy. “
That is, I fear, too generous an explanation for the court’s series of constitution-distorting rulings.
The president and many of his followers think of him as a political messiah. They take seriously the view that the United States is a nation in decline, precipitated by the destructive policies and woke ideologies of the so-called “radical left.” They take seriously the president’s claim that “I alone can fix it.” And so, I suspect, so do the president’s allies on the Supreme Court. They have shown that they won’t let the Constitution stand in the way when the fate of the nation is at stake.
Don’t be fooled, despite what Mike Johnson and the president are saying now: the 22nd Amendment will not stand in the way of a third Trump term. If necessary, the Supreme Court will see to that.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.