The 22nd Amendment cannot enforce itself
The question isn't whether Trump will run for a third term. The question is who is going to stop him.
Trump has been floating the notion of running for a third term for quite some time now. Last April, he told NBC News that the idea was not a joke — there are ways, he mused, to evade the 22nd Amendment and its two-term limit. Last week, House Speaker Mike Johnson said that he and President Trump have discussed the possibility of a third term but that Johnson does not “see a path for that.” A day later, Trump told reporters “it’s too bad he is not allowed to run for a third term.”
Don’t let this waffling fool you. Two weeks ago, Steve Bannon told The Economist that “Trump is going to be president in ‘28 and people just ought to get accommodated with that.” Bannon served as the White House’s chief strategist during Trump’s first term before he was fired. Trump later pardoned Bannon, who was convicted of fraud and money laundering charges in connection with the build-the-wall campaign.
At this point in the country’s decades-long jousting with Donald Trump in political office, one thing should be a given: When he promises to do something outlandish, believe him. Trump mostly does what he says he is going to do.
He has also made clear that he does not care about the First Amendment’s protections for free speech and freedom of the press, the Fourth Amendment’s warrant requirement, the Fifth Amendment’s Due Process Clause, Congress’s power to pass binding laws and to appropriate money under Article I, Congress’s power to impose tariffs, yada yada yada.
What makes anyone think he is going to let the 22nd Amendment stand in his way if he wants to retain power? Have too many of us collectively forgotten about January 6, 2021?
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As I discussed with Laura Coates on CNN and with a reporter for Newsweek, the process for getting on a presidential ballot differs from state to state. The two major political parties decide who their nominee is at their respective conventions. If the GOP decides to put Trump on the ballot, it’s going to be really difficult to stop that train.
In March of 2024, the Supreme Court ruled in Trump v. Anderson that Colorado courts could not keep him off the ballot for having engaged in an insurrection, notwithstanding the clear language of Section 3 of the Fourteenth Amendment. There were no dissenting opinions.
For the Court to consider the question of presidential term limits, it would first have to find that a plaintiff has standing. This means that the plaintiff asking the Court to kick Trump off enough state ballots under the 22nd Amendment to remove him from the 2028 election is the right plaintiff, bringing the right case, to the right court, at the right time. The same Court could refuse — once again — to entertain a lawsuit aimed at stopping the GOP from choosing the top of its ticket. And JD Vance, as Vice President, will be responsible for officially counting the Electoral College votes.
