President Donald Trump once again expressed interest in serving beyond the constitutionally mandated cap of two terms.
Asked by reporters about running for a third term in 2028, Trump said “I would love to do it,” adding, “I have my best (polling) numbers ever.”
Trump’s Oct. 27 remark on an Air Force One flight to Japan followed publication of an interview with his ally Steve Bannon, who told The Economist that “he’s going to get a third term … People ought to just get accommodated with that.” Bannon, who was pardoned by Trump after facing charges that he defrauded donors of a project intended to support Trump’s border wall, has no official role in the administration but said a “plan” to accomplish a third Trump term was in the works and would be unveiled “at the appropriate time.”
Trump has been publicly toying with a third term for much of his second. It would run counter to the clear language of the Constitution’s 22nd Amendment, which says, “No person shall be elected to the office of the President more than twice.”
In an interview with Trump that aired March 30, NBC’s Kristen Welker mentioned the possibility of Vice President JD Vance, or another ally, running for president in 2028 with Trump as his vice presidential nominee, and then, if they win, stepping down and letting Trump ascend to the presidency. “That’s one. But there are others, too,” Trump told Welker. He added, “I’m not joking.”
Asked again about the possibility of a vice presidential switch during his recent Air Force One remarks, Trump said, “Yeah, I’d be allowed to do that.” He added, though, “I would rule that out because it’s too cute. I think the people wouldn’t like that.”
It’s possible that he’s trolling his critics; Trump is selling red “Trump 2028” hats, which he displayed at a meeting with Democratic leaders to discuss the federal government shutdown. The White House did not respond to an inquiry for this article.
The 22nd Amendment directly bars Trump from running for a third term, and allowing a president a third term would violate the Constitution’s spirit, constitutional experts told PolitiFact in March
But it might not violate the letter of the 22nd Amendment, they said.
A scenario such as the one involving Vance could provide a loophole that a candidate could exploit — along with some big ifs.
Trump would need buy-in from the courts and Congress, and the voters, who would have to weigh whether his performance during his second term and his health at 82 years on Inauguration Day 2029 — older than any president has been on an Inauguration Day — merited another four years in office.
“I think the best interpretation” of the constitutional language “is that Trump is ineligible to become president for a third term,” said Ilya Somin, a George Mason University law professor. “However, the issue is not airtight.”
Could Trump legally run for a third term?
Beginning with George Washington, who made a point of stepping down in 1797 after two terms in office, every president until Franklin Roosevelt in the 1940s served no more than two full elected terms. But this was a norm, not a written rule, and after the Great Depression and the start of World War II, Roosevelt successfully ran for a third term, and then a fourth.
After Roosevelt’s tenure, officials of both parties agreed to codify the two-term presidential limit. The 22nd Amendment cleared Congress on March 21, 1947, and was ratified on Feb. 27, 1951, a little less than six years after Roosevelt died in office.
This much, legal experts say, seems ironclad: No two-time winner of a presidential election can run for president a third time.
But there’s a caveat that hinges on the 22nd Amendment’s specific phrasing: It uses the word “elected.”
“There are ways to become president other than being elected president, and therein lies the problem,” said Brian Kalt, a Michigan State University law professor who wrote about the question in the 2012 book, “Constitutional Cliffhangers.”
The logic underpinning a Vance-Trump switcheroo is that Trump would have been elected vice president, not president, and he would become president by succession, not by election.
“A twice-elected president can clearly serve as president again,” Scott E. Gant, a lawyer in private practice, told PolitiFact in March.
Gant, who co-wrote a 1999 law review article on this topic, cautioned against assuming how Supreme Court justices would rule in a hypothetical case. Still, he said, “I would expect they would agree with our conclusion.”
In his book, Kalt wrote that presidential succession, distinct from presidential election, was a familiar concept to lawmakers as they were drafting the amendment.
“At the very moment that the 22nd Amendment was written in 1947, the incumbent president was Harry Truman, who had succeeded to the office and had not (yet) been elected in his own right,” Kalt wrote. “At that time, every generation in living memory had featured unelected presidents.”
The main legal argument against the Vance-Trump 2028 scenario comes from the 12th Amendment. That amendment, ratified in 1804, says, “No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
However, the 12th Amendment makes no distinction between being elected president and serving as president. If one uses the logic that the 22nd Amendment prohibits a two-term president from being elected to a third term — but does not prohibit a president from serving a third term — then a two-term president is “eligible” to serve as president a third time, which would make Trump eligible to run as Vance’s vice presidential running mate.
Another approach involves the House speakership. The Constitution doesn’t bar a former two-term president from becoming House speaker. Becoming president this way would require the resignation of both the elected president and an elected vice president; if that happened, the House speaker would be next in line for the presidency. (By the Constitution, an aspiring third-term president wouldn’t need to win a seat in the House to be elected speaker, although historically, the House has always elected one of its members as speaker.)
The least practical option is amending the Constitution, which hasn’t been done from start to finish since 1971. The bar is high requiring two-thirds approval in both chambers of Congress, then approval by three-fourths of the states. In today’s politically polarized age, securing that level of support for a third Trump term is essentially impossible.
How realistic are these scenarios?
Trump would need to claw back a substantial amount of support to be competitive in a free and fair 2028 election.
Despite Trump’s statement on Air Force One that “I have my best numbers ever,” polling averages show him from 7 to 13 percentage points under water, meaning his disapproval rating is higher than his approval rating. Trump’s approval rating is lower than for any post-World War II president at this point in his tenure other than his own first term. An April ABC News/Washington Post poll found 18% of those surveyed supporting a third Trump term; among Republicans, support was 38%.
In addition, Trump would have to lock in a commitment from the Republican presidential nominee to step down if elected. “What’s in it for Vance?” Frank O. Bowman III, a University of Missouri law professor, said. “If they won the election, he’d be the president. Why give that up?”
Trump would also need to get on the ballot in enough states to secure an Electoral College majority, something that many Democratic-leaning states would likely try to block if he defied the 22nd Amendment and ran.
Although the issues were somewhat different, the Supreme Court’s unanimous 2024 ruling in Trump v. Anderson could bolster Trump’s quest in that regard. In that case, Colorado sought to bar Trump from the 2024 ballot, arguing that his role in the Jan. 6, 2021, U.S. Capitol riots disqualified him under the 14th Amendment. The justices said he could not be barred on those grounds.
Trump would have another option, albeit one that would be unconstitutional by any measure: Refuse to give up the presidency.
Deciding to stay in office past Jan. 20, 2029, “would effectively be an overthrow of our government,” said Michael Gerhardt, a University of North Carolina law professor.
Kalt agreed: “That would be the end of the United States of America’s constitutional experiment.”
