Can Trump Serve a Third Term?

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President-elect Donald Trump, who will return to office for a second term on Jan. 20, 2025, recently reignited a constitutional debate about whether a twice-elected president can serve a third term.

“I suspect I won’t be running again unless you say, ‘He’s so good, we’ve got to figure something else out,'” Trump told House Republicans on Nov. 13, perhaps jokingly.

The 22nd Amendment, which was ratified in 1951, states that “[n]o person shall be elected to the office of the President more than twice.” The amendment was spurred by President Franklin D. Roosevelt, who was elected president an unprecedented four times, the nonpartisan Congressional Research Service said in a 2019 report.

The 22nd Amendment would block Trump, who at 78 is the oldest person to be elected president in U.S. history, from running for a third term — unless it was repealed, which is highly unlikely.

“I don’t think there’s any realistic possibility that the 22nd Amendment could be repealed,” Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania and great-great-grandson of President Theodore Roosevelt, told us in an email. “That would take another amendment (like the 21st, repealing the 18th) and I don’t think it would get 2/3 of both houses of congress, much less 3/4 of the states.”

To add an amendment to the Constitution, the House and the Senate both need to approve a joint resolution with a two-thirds majority, and then 75% of the states must ratify the amendment. The 18th Amendment, which ushered in the Prohibition Era, is the only amendment ever to be repealed.

But, as the CRS stated in a 2009 report, there has been a debate “as to whether the 22nd Amendment is an absolute limit on service as President.” While it is clear that a person cannot be elected to a third term, whether a twice-elected president can serve a third term as president or acting president is an unresolved constitutional question, the CRS report said. (Emphasis is ours.)

“[L]egal scholars Bruce Peabody and Scott Gant asserted in a 1999 article that a former President could also succeed to the presidency, or be ‘acting President’ from the wide range of positions covered in the Presidential Succession Act,” the 2019 CRS report said. “By their reasoning, a former President serving as Speaker of the House, President pro tempore of the Senate, or as a Cabinet officer would also be able to assume the office of President or act as President under the ‘service vs. election’ interpretation of the Twenty-Second Amendment.”

Under the Presidential Succession Act, the vice president is the first of 18 people in line to replace a president who dies, resigns or is otherwise unable to hold office. The House speaker is second in line, and it is worth noting, the Republicans retained control of the House after the 2024 election. (Trump entertained the thought of become House speaker last year when the House Republicans were divided on who should replace deposed House Speaker Kevin McCarthy.)

Peabody and Gant wrote the 1999 article for the Minnesota Law Review at a time when then-President Bill Clinton was nearing the completion of his second term. “It appears to be a commonly held view that when Bill Clinton’s second term expires, he will be constitutionally prohibited from serving again as President of the United States. This, we believe, is decidedly incorrect,” they wrote.

“While there is plenty of debate on the matter, the language of the 22nd Amendment talks only about limiting who ‘shall be elected to the office of the President’ (emphasis added),” Peabody, a professor of government and politics at Fairleigh Dickinson University in New Jersey, told us in an email. “In my analysis, therefore, the 22nd Amendment does not prohibit a person from becoming or acting as president so long as this person is not elected to a third term as president.”

Peabody also told us in an email that a twice-elected president could run for vice president and serve as president if the president dies, resigns or is removed from office.

Peabody, email to FactCheck.org, Nov. 15: There are actually five fairly clear scenarios through which a twice-elected president could again become or act as president:

Such a person could[:]

(1) serve as Vice President and then become President in the case of removal, death or resignation of the President

(2) serve as Vice President and then act as President during a period in which the President is unable to discharge the powers and duties of the Office, as authorized by (a) a written declaration from the President him or herself, or (b) through the VP and a “majority of either the principal officers of the executive departments” or some other authorized body indicating that the President is disabled/unable to discharge the duties of the office (25th Amendment)

(3) become Vice President-elect and then President if “at the time fixed for the beginning of the term of the President, the President-elect shall have died” (20th Amendment)

(4) become Vice President-elect and then act as President if “a President shall not have been chosen before the time fixed for the beginning of [the] term, or if the President-elect shall have failed to qualify” (20th Amendment)

(5) act as President under circumstances provided for by the Succession Act of 1947 which kicks in [when] both the President and the VP are unable to discharge their duties

Roosevelt, the University of Pennsylvania law professor, said any attempt to circumvent the 22nd Amendment in those ways would be challenged in court. “I think the odds of that [being successful] are extremely low,” he said.

“Obviously the concern the 22nd Amendment is addressing is that someone who serves more than two terms as president might accumulate too much power,” Roosevelt said. “That concern has nothing to do with how the person takes office the third (or fourth, or fifth) time.”

Why, then, does the 22nd Amendment say “be elected” instead of “serve”?

“[T]he answer is probably that the only other way to become president is by moving through the vice-presidency and they thought the 12th Amendment took care of that,” Roosevelt said.

The 12th Amendment, which was ratified in 1804, appears to disqualify a two-term president from being vice president. It extended the qualifications for presidents, such as age and residency requirements, to the vice presidency. It also states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

Peabody interprets the 12th Amendment more narrowly than Roosevelt.

“The most obvious reading of this provision is that it applies to the Article II language discussing eligibility: ‘No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.’ Someone who is not a ‘natural born Citizen’ or someone who is 34 can’t come in the ‘back door’ by being, say, a VP and then becoming president,” Peabody said.

“But, in my view, those are the only ‘eligibility’ restrictions mentioned in the Constitution. And, of course, Mr. Trump meets the Article II eligibility language,” he added. “Bottom line: A plausible reading of the Constitution is that Trump could serve out his second term and still become or act as president through one of the scenarios described above.”

The 2009 CRS report weighed both of these arguments and concluded, “It seems unlikely that this question will be answered conclusively barring an actual occurrence of the as-yet hypothetical situation.”

At least one Democrat wants to prevent such an occurrence. Rep. Dan Goldman of New York has said he would introduce a House resolution barring Trump from serving more than two terms. NBC News, which obtained a copy of the resolution, wrote that it “reaffirms that the 22nd Amendment ‘applies to two terms in the aggregate as President of the United States’ and reaffirms that it ‘applies to President-elect Trump.'”

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