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The news cycle has continued in a predictable arc. Last week, Steve Bannon, the far-right provocateur and one-time Donald Trump adviser, said in an interview with the Economist that the president would seek an unconstitutional third term. “Trump is going to be president in 28, and people ought to just get accommodated with that,” Bannon said. (He seemed to be referring to Trump winning the presidential election in 2028 – Trump’s current term will last through 20 January 2029.) “At the appropriate time, we’ll lay out what the plan is.”
Like clockwork, Trump commented on the idea soon after, telling reporters following him on Air Force One as he flew from Kuala Lumpur to Tokyo: “I would love to do it.”
Initially, he said: “I haven’t really thought about it. But I have the best poll numbers I’ve ever had.” (This is not true; Trump’s approval has sunk considerably, with a new poll released this week showing him at a net -19 point approval rating, the lowest of his second term.) Still, Trump said he would be legally able to run again in a scheme in which he was placed on the ticket as a vice-presidential nominee, only for the puppet placed in the presidential slot to resign once taking office, thereby granting him the presidency. But he suggested that he would prefer to run himself, casting aspersion on the vice-presidential campaign option. “I don’t think people would like that,” he said. “It would be too cute, it wouldn’t be right.” In fact, it would also be unconstitutional, violating the 12th amendment’s prohibition on anyone ineligible for the presidency to be elected as vice-president.
In a notable departure from his being loath to disagree with the president about anything at all, the House speaker, Mike Johnson, on Tuesday seemed to pour water on the idea of a third Trump term, noting, correctly, that such an outcome is barred by the constitution. “Well, there’s the 22nd amendment,” he noted. Johnson said that Trump was “trolling” his political enemies; analysis at CNN and the New York Times suggests that Trump is using the third-term comments in part to mute awareness of his own lame-duck status.
Johnson is correct that the plain language of the constitution prevents Trump from getting what he says he wants in a third term. But we are in a moment when the plain language of the constitution is being subverted, ignored and read with shocking bad faith by the rightwing legal establishment, from law professors to justices of the supreme court, who have seemed eager to nullify parts of the constitution in order to expand Trump’s prerogatives and indulge his whims. How else but as an attack on the constitutional order are we supposed to understand, to cite just one example, the supreme court’s decision to allow Trump to proceed with his dismantling of the Department of Education – a body created by Congress, which only Congress has the power to dissolve? The prohibition posed by the constitution against a third Trump term does not seem like an especially robust defense in an era when the constitution is effectively being rewritten to grant Trump ever more power, with ever fewer opportunities for accountability. The constitution, after all, is just a piece of paper. And of the nine jurists tasked with settling on its authoritative interpretation, six of them are in the tank for a man hostile to its principles.
If obviating the plain and obvious language of the 22nd amendment seems like too embarrassing a move even for this degraded and servile supreme court, consider what the court is already looking to do to the 14th amendment. The plain reading of the amendment, which has been understood and implemented in exactly one way for the past 157 years, is that the constitution confers citizenship to all persons born within the United States – what is called birthright citizenship. But after the Trump administration issued an executive order purporting to nullify this constitutional provision, the supreme court intervened to allow the order to go into effect, and made an unprecedented move to prevent lower courts from easily blocking it.
The justices were provided cover, and a degree of plausible deniability, by right-leaning law professors, who had responded to the Maga movement’s calls to end birthright citizenship by assembling a legal literature that claims – through strained, misstated, far-fetched and outright wrong readings of the historical and legal record – that there is a longstanding controversy about the meaning of the 14th amendment’s citizenship clause. There is not. But their papers have created a veneer of intellectual credibility and a pretext for the Trump administration to do what it wants to do anyway: ignore the constitution. (In a briefing filed to the supreme court, asking it to sanction Trump’s attack on citizenship, the Trump administration alludes to “[a] growing body of modern scholarship”, and cites Trump-aligned scholars whose work claiming to limit birthright citizenship the administration’s own actions had provoked.) When the supreme court finally rules on the constitutionality of Trump’s order and the future of birthright citizenship is determined, what these law professors say may well matter more than what the constitution does.
And this is why the notion that Trump “can’t” run for a third term, merely because such a thing is unconstitutional, may be a bit naive, or insufficiently alert to the degree to which the American constitutional order has already collapsed. What is and is not constitutional is determined, in effect, by Trump loyalists on the court; they already have an infrastructure of bad-faith enablers who will help them launder their efforts to empower him with flimsy pretenses of legal justifiability. And we already know, too, what happens when the law says that Trump must leave office, but he doesn’t want to. Events have long since made clear that the law is no check on Trump’s power. He’ll have to be stopped by the people instead: not with a lawsuit, but with a movement.
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Moira Donegan is a Guardian US columnist
