Richard Primus writes:

President Donald Trump is cagey about whether he might try to stay in office after his current term expires. He frequently says that other people want him to do it, and the Trump Organization is selling Trump 2028 hats. In March, he said that he is “not joking” when he refers to a possible third term. More recently, he said that a third term is “something that, to the best of my knowledge, you’re not allowed to do” but then immediately questioned the constitutionality of being prevented from running again. When pressed about how he would serve a third term despite the Constitution’s rule against being elected more than twice, he said, “There are ways of doing it.”

In short, Trump is aware that if he wants to serve a third term, the Constitution—in particular, the Twenty-Second Amendment—presents a problem. But he’s not precluding the possibility. Problems can be solved. Notice how he frames the issue: For the president, the Constitution is not a repository of values that he must respect. When it stands in the way of his interests, it is an obstacle to be overcome.

When Trump says, “There are ways of doing it,” he has in mind work-arounds like the one he calls “the vice-presidential thing.” The idea is something like this: The Twenty-Second Amendment says that “no person shall be elected to the office of the President more than twice.” Construed strictly, the prohibition is on being elected, not on holding the office. So if Trump could be president after 2028 without being elected president—say, if he were elected vice president, and then the person elected at the top of his ticket resigned, thus making Trump the president—then he would not be violating the prohibition. After all, he would not be elected “to the office of the President more than twice.”

Whether this work-around would be legally valid is the subject of some controversy among experts in constitutional law. As a strictly textual matter, it makes sense. At the same time, it’s a clear nullification of the purpose of the amendment. No one can know how the Supreme Court would resolve that tension three years from now.

But if the question of how courts would assess such a work-around is murky, Trump’s willingness to promote the idea is enormously illuminating. It reflects his sense that where his interest in power is on the line, the Constitution is something to be evaded. [Continue reading…]