Exactly 228 years ago today, March 4, 1797, George Washington finished his second term as President, ready to retire quietly to being a plantation farmer at Mount Vernon. Four years from now, America could be asking itself: will President Trump be willing to step aside?
In fact, Trump and some of his followers already are asking: why not a third term, beginning in 2028?
Two likely answers would come quickly to mind. One is that the 22d Amendment would forbid it. Another is: no, it would not. Despite the political furor that surely would arise if Trump were to make a bid for another term (assuming he lives to do so), there is an ongoing, quite respectable scholarly debate on the point.
Only one President, Franklin Roosevelt, served more than two terms (he was elected to four but died early in the fourth, in 1945). And, for some, that flatly contradicted the choice and the precedent set by George Washington: two terms in the White House should be enough for one person.
That precedent finds its most compelling echo in the 22d Amendment, ratified in February 1951. Its opening words are: “No person shall be elected to the office of the President more than twice.” It also goes on to say, reinforcing the same purpose: “and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected as President more than once.”
Historians seem to agree that the Amendment was, in a positive sense, a gesture of respect for Washington’s example, and, in a negative sense, a bitter partisan rebuke of the inflated ego of Franklin Roosevelt. But, today, constitutional scholars do not agree on whether there is in the Amendment’s text a loophole, or more than one loophole, that might clear the way for a future third-term President.
Donald Trump has imagined himself to be a third-termer. He has claimed, for example, that he would be so popular in America that he could just stay in office, with no elections necessary until after he departs. That, of course, would violate at least the spirit of the 22d Amendment as well as Article II, which says that a President’s term in office is four years.
Further, after his defeat in the 2020 election, Trump and his followers attempted to keep him in office with a plan to rig the counting of the Electoral College presidential votes to nullify President Joe Biden’s victory and give Trump a second term at that point.
Some of his political followers, though, are floating another, more direct approach: amend the Constitution’s 22d Amendment. Soon after Trump was inaugurated in January, a Tennessee Republican, Rep. Andy Ogles, introduced a proposed amendment that would say: “No person shall be elected to the office of the President more than three times.” (There is additional language in the proposal, but that part is designed specifically to prevent two living former Presidents, Barack Obama and Bill Clinton, from running for a third term.)
The Ogles proposal has the superficial appeal that it would at least require Trump to run for election in 2028 and to win again as an expression of the voters’ choice. By making a third term available only by election, the Ogles plan is supposedly a high-minded gesture toward freeing the American voters to cast their ballots legitimately again for a popular favorite. That, indeed, was one of the arguments made in Congress by opponents of the 22d Amendment. (Of course, the Constitution already does limit the uninhibited choice of the voters: for example, no one under age 35 can be elected President.)
Will Congress, today, or will the Congress that is to be elected in 2026, be able to muster the two-thirds majority in each the House and the Senate to propose Ogles’ wording, and send it to the states, where it would need approval by three-fourths of the states? Giving the actual and likely near-term future partisan polarization in Congress, there is almost no chance of success for that proposal.
Does that mean the 22d Amendment, as it now exists, remains a firm barrier to a third term? That is at the center of an ongoing debate, in academic circles and among some political activists. That debate appears to be centered mainly on six possible scenarios for a future third-term Presidency.
Those were first spelled out in a law review article published in 1999 by Bruce G. Peabody, then a graduate student at Wesleyan University and later a professor at Fairleigh Dickinson University, and Scott E. Gant, a private Washington, D.C., attorney. (Peabody did an updated version of the article in 2016.) The bottom line of their studies, based on deep historical research and analysis of the constitutional text, was that none of the six scenarios would violate the 22d Amendment, so none would require any change in the Constitution’s text.
Each scenario starts with a President who already had been elected twice to that office. In summary, here are the six:
1. After the second term, getting elected as Vice President and then becoming President when the office is vacant after the President’s death, resignation or impeachment and removal.
2. As Vice President, then acting temporarily as President when the sitting President is disabled but remains in office. (This is now allowed by the 25th Amendment, the disability provision ratified in 1967 after the assassination of President John Kennedy in 1963.)
3. As Vice President, then succeeding a President who dies between election day and inauguration.
4. Winning as Vice President, then acting as President because the person who ran for that office was found disqualified — before inauguration — to hold the office.
5. Getting chosen for a position that, under a federal law passed in 1947, as third in line for the Presidency in case of a vacancy (for example, House Speaker or a Cabinet officer), and then becoming acting President when the President has died or been removed.
6. As a former President who had two terms then was chosen by the House of Representatives to be President when the Electoral College method has failed to produce a winner for the Presidency or Vice Presidency.
The authors of the articles regard the sixth scenario as the one they consider the least legitimate, because of the potential for manipulating how the House chooses after an election fails to produce a winner for the two positions. The Constitution specifies that the House makes the choice in the event that no one decisively wins the Presidency or Vice Presidency at an election.
That happened first in U.S. history in 1801, when there was a tie in the election for the Presidency between Thomas Jefferson and Aaron Burr. It took the House 36 ballots before it selected Jefferson. That debacle led to the 12th Amendment, altering how the Electoral Vote count is conducted so that a tie could never occur again.
The House has chosen the President only one other time since the 12th Amendment was added in 1801. That occurred in 1825, following the election of 1824, when John Quincy Adams was picked by the House over Andrew Jackson by what has always been known to historians as a “corrupt bargain,” manipulating a victory for Adams. Jackson had won the popular vote, but neither he nor Adams had won a majority in the Electoral College.
Because the Peabody-Gant scenarios were offered before Donald Trump first became President in 2016 (Peabody’s revised version was written that summer, before the election), they take no account of him as a potential two- or three-termer. But Peabody’s updated article in 2016 discusses, at some length, the potential for “constitutional end-runs” around the 22d Amendment.
In view of Trump’s now quite well-established habit of flouting constitutional norms, including his conduct in trying to stay in office after his loss four years ago, it seems entirely plausible (if not predictable) that he might work out a deal with Vice President J. D. Vance to accomplish an “end run” in 2028.
It might work this way: first, put Vance in as the presidential nominee for that election, and Trump in for the vice presidency. If they don’t win outright in the election that year, and the choice passed to the House of Representatives, Trump then could be chosen for a third term (scenario No. 6). Or, if they did win outright, Vance could be persuaded to step aside before the inauguration, and Trump would then step up (a variation of scenario No. 3, with Vance voluntarily resigning rather than dying).
That kind of a plot might be done audaciously out in the open (or, if not openly acknowledged, would be widely understood anyway as an obvious ploy), and thus would be regarded as a constitutional end-run. But the reality is that, while the Constitution’s words and its limitations on political manipulation are binding, it is also the reality that the basic document requires a good-faith adherence to its strictures by those who hold or seek high office. As founder James Madison warned, the Constitution sometimes is only a “parchment barrier” to the designs of ambitious political actors.
