“We’re going to win four more years. And then after that, we’ll go for another four years because they spied on my campaign.” — Donald Trump, August 2020
You know, FDR 16 years, almost 16 years, he was four-term. I don’t know, are we going to be considered three-term or two-term? Are we three term or two term if we win?” — Donald Trump, May 2024
“I suspect I won’t be running again, unless you say, ‘he’s so good, we’ve got to figure something else.’ ” — Donald Trump, November 2024
Donald Trump frequently states that he may well push for a third term. (And sometimes, of course, he says exactly the opposite.)
You’ve no doubt heard experts assure us that a third Trump term is impossible: The U.S. Constitution, under the 22nd Amendment, they say, does not permit a president to serve more than two terms. The New York Times, just today, assured us that it is impossible.
The Amendment states, “No person shall be elected to the office of the President more than twice.”
This means (they say) that a former president who has already served two terms cannot run for the presidency again.
But Are They Right, the Experts?
Beware expert opinion, especially anti-Trump expert opinion assuring us that everything will be fine.
And these experts are on especially weak footing here.
When evaluating the Constitution, one must look at intent and history, as well as precedent, alongside the plain meaning of the words, to figure out how to read the text.
And if we want to figure out how this amendment will be read, also think about who will do the reading.
Two of these questions can be answered quickly and easily: as for “precedent,” past decisions by judges interpreting the text, there is none. The 22nd Amendment has rarely, if ever, been directly interpreted by a court. No former president has attempted to serve more than two terms since the Amendment’s ratification in 1951, there has been no need for a court challenge or judicial interpretation, and therefore no judge has ever opined directly on what this amendment means.
In practice, this means that the amendment has not been tested in the courts, leaving its interpretation largely theoretical.
And for the second question: who would do the interpreting? A bunch of Trump-appointed judges who will, if history is any guide, try their best to do what Trump wants.
And let’s imagine that upon exiting the presidency, Trump will face jail time for his New York felony convictions. He would have every reason to remain in office until he dies.
The History of the Amendment
Before the 22nd Amendment, there was no formal restriction on the number of terms that a president could serve, though presidents traditionally limited themselves to two terms following George Washington’s example.
The amendment was ratified in 1951, after Franklin D. Roosevelt was elected to four consecutive terms, solidifying the two-term limit. One of the primary motivations behind the 22nd Amendment was to prevent an excessive accumulation of power by any one individual. This concern arose specifically from Franklin D. Roosevelt’s unprecedented four consecutive terms, which raised fears about a president becoming too powerful and entrenched. Limiting presidents to two terms was intended to ensure regular turnover in leadership and to prevent any one person from holding the office for too long, which could disrupt the balance of power in the government.
The framers of the 22nd Amendment were specifically reacting to Roosevelt’s prolonged, uninterrupted time in office, and the concern was indeed about continuous power rather than necessarily banning a president from ever serving again after stepping down. This suggests that a nonconsecutive third term was not their primary focus.
One could thus argue that the intent was to avoid uninterrupted power, and so a nonconsecutive third term might not be as concerning since the individual would have been out of power for at least one term. In theory, this could allow a former president to bring fresh perspectives after time away from office. On its face, this provides compelling support for the idea that a president who serves three nonconsecutive terms does not trigger the specific threat that the Amendment was intended to cure.
The Plain Meaning of the Text
“No person shall be elected to the office of the President more than twice.” What does this mean, really, in everyday, commonly understood language? Doesn’t it mean “more than twice in a row”? If it were intended to mean consecutively or nonconsecutively, would not the framers have said so?
Someone says to you, “Don’t spend more than an hour shopping!” Or “Don’t watch more than two hours of television.” Or “Don’t run for more than an hour.”
What does this mean?
It means consecutively.
Absent some kind of clarification – “Don’t watch more than two hours of television from now until the end of your life” – the commonly understood, everyday, plain meaning of that directive refers to now.
In everyday language, phrases like “don’t have more than three glasses of wine, it’s bad for your health” implies a limit on a single instance rather than an absolute restriction on all future activity. And the “plain meaning” of a Constitutional amendment refers to what the wording means in common usage.
So “more than twice” in the 22nd Amendment would mean “more than twice consecutively,” especially when viewed with the historical intent behind the amendment, which was largely about preventing continuous, unchecked power in the executive.
While insisting that the language of the Amendment is perfectly clear, Democratic Representative Dan Goldman is seeking to bring a resolution to the House floor confirming that interpretation; the Republican speaker will not. This is, unfortunately, persuasive evidence that the Amendment does not, on its face, prohibit a third nonconsecutive term, and that this is furthermore the intent of the legislative branch.
The Supreme Court Cares About Precedent!
The debate over presidential term limits under the 22nd Amendment seems straightforward. Most constitutional scholars and legal experts agree that the amendment’s language allows little room for interpretation, reinforcing the common understanding that a president is limited to two terms, whether consecutive or not.
Yet constitutional scholars and legal experts are not judges.
Just a few years ago, constitutional scholars were confident that certain precedents—such as Roe v. Wade, the established understanding of official presidential acts and the limitations on presidential immunity—would stand strong in the face of judicial scrutiny. And look how that went!
The Supreme Court has demonstrated a willingness to revisit, and sometimes outright disregard, well-established precedent when it sees fit. The case of Bush v. Gore in 2000 is a striking example; in that decision, the much less radicalized, though conservative, Court intervened in a presidential election with reasoning so specifically designed to appoint one particular Republican as president that it instructed lower courts not to view the ruling as a precedent. Similarly, in cases like presidential immunity and the executive branch’s authority to cancel student debt, today’s Trump Court has not hesitated to reinterpret statutory and constitutional language in ways that benefit former President Trump or challenge President Biden’s initiatives.
Given this trend, it is far from unreasonable to predict that the current Court, if asked to interpret the 22nd Amendment’s two-term limit, might prioritize a desired political outcome over longstanding interpretations. There’s a plausible constitutional argument for allowing a third term, and so recent rulings suggest they might be inclined to reinterpret or even set aside precedent if the decision aligns with what seems favorable to Trump.
Nuance is Everything
This underscores the nuance that could arise if this were tested in court, if Trump did attempt a nonconsecutive third term, the Supreme Court would have to consider whether the amendment’s intent was to prevent only consecutive terms or to cap any president’s total time in office to two terms, regardless of separation.
Donald Trump may well leave office peacefully in 2029.
But if he does not, if Trump wishes to stay in power after this term — even if chooses just to stay, and not to “be elected” — who will stop him? The Supreme Court has already expressed great deference for official presidential acts, so the justices would be quite likely to defer to his judgment, whatever he decides.
^^^
This article was written by Alon Preiss, a former lawyer who lives on the East Coast of the United States. He is the author of three acclaimed, out-of-print novels about the last third of the 20th century.
Image by Kalyee Srithnam.