The 22nd Amendment workaround

Here’s a pathetic little spectacle:

When President-elect Donald J. Trump met with House Republicans on Wednesday morning, he suggested he might need their help to try to circumvent the Constitution and run for a third term in the future — a comment that was met with laughter by his friendly audience.

“I suspect I won’t be running again unless you say, ‘He’s so good we’ve got to figure something else out,’ ” Mr. Trump told Republicans, who appeared to take it as a joke.

One Democrat is moving quickly to make sure that cannot happen. Representative Dan Goldman of New York plans on Thursday to introduce a resolution clarifying that the Constitution’s two-term limit for presidents applies even if the terms are not consecutive. It asserts that the 22nd Amendment to the Constitution, which states that a person who has been elected president twice cannot run again, “applies to two terms in the aggregate” and leaves no loophole.

In other words, Mr. Trump — who served from 2017 to 2021 and is slated to assume the presidency again in January — could not seek another term in the future.

There’s no ambiguity to clarify here: The first sentence of the 22nd amendment is “No person shall be elected to the office of the President more than twice[.]”. If Trump were to be elected to a third presidential term, it would be no different than electing a 29-year-old president, or a president born in Austria of Austrian parents. This is just OCD lawyering, attempting to somehow make interpretations of language that aren’t possible immune from political decisions to ignore that impossibility, which of course is impossible.

In fact there’s a relatively straightforward way for Trump to end up serving a third term without simply ignoring the Constitution altogether, although I haven’t seen anybody mention it yet. It’s this: the 12th amendment says that nobody who is constitutionally ineligible to hold the office of the presidency can be vice president. But if you want to engage in perverse formalistic interpretation, you can argue that the 22nd amendment merely limits who can be elected president, rather than who can hold the office. At the time the 12th amendment was adopted, the only people ineligible to hold the office were those under 35, foreign-born, or not residents of the United States for at least 14 years.

So if you want to get all originalist about it, the 12th amendment doesn’t bar somebody who has been elected president twice previously from being vice president in a future presidential term. So in 2028 Trump could run on the Republican ticket on the explicit basis that the putative presidential candidate would resign on January 20, 2029. I pretty much guarantee you that at least five members of the present SCOTUS would hold that the question of whether the 12th amendment’s terms should retrospectively incorporate the 22nd amendment’s disqualification for election is a political question, that should be answered by the political process, rather than by judicial review.

And I can also pretty much guarantee that, if Trump wants to remain president for life, there will be a Federalist Society panel in 2027 or so pointing out that an Originalist Understanding doesn’t bar that possibility.

Lay down your law books now they’re no damn good.