Think Trump Can’t Run Again in 2028? Don’t Be So Sure.
The loophole that could give him a third term.
“I SUSPECT,” DONALD TRUMP RECENTLY told House Republicans, that “I won’t be running again unless you say, ‘He’s so good we’ve got to figure something else out.’” What might that something else be?
Some commentators have said that Trump has no real intention of running again, that he is just teasing and trolling, warding off the bad vibes of being a lame duck. Indeed, although he has on many occasions hinted at making another run, Trump has also sometimes said he’s done.
Other commentators have suggested that Trump might just try to run for president in 2028 and dare the courts to stop him. But no, Professor Michael McConnell assures Vox, there are no loopholes: “This will be his last run for president.” Short of amending the Constitution to override the amendment that created presidential term limits—a steep climb, as it would require the assent of three-quarters of state legislatures—Trump simply cannot run again, end of story.
And yet, Stanford’s renowned constitutional law scholar concedes that Trump could “theoretically” run for the vice presidency in 2028, then take over as president if his running mate resigned immediately after being inaugurated. But this just “isn’t going to happen,” McConnell asserts, calling the idea a “silly thing to worry about.”
Really? Is the idea any sillier than Trump trying to stay in power after losing the 2020 election? Staying in power will be the only sure way Trump stays out of prison, so why wouldn’t he try it?
Why Trump Is Unlikely to Run for President Again
THE TWENTY-SECOND AMENDMENT, ratified in 1951, says: “No person shall be elected to the office of the President more than twice.” That seems unambiguous, but some are skeptical: “When the time comes, the 22nd Amendment will prove to be as iron-clad as the 14th Amendment,” fears Jonathan V. Last. In June, a Colorado judge found that Trump engaged in insurrection against the United States in 2021. The Colorado Supreme Court declared Trump ineligible for the presidency under the Fourteenth Amendment. Yet the U.S. Supreme Court put Trump back on the ballot. Might the Court similarly block legal challenges to Trump running for a third term?
Alarmism about the Court is increasingly justified. The Court’s conservatives just shielded Trump from prosecution for almost anything he might do in office by inventing a new doctrine of presidential immunity out of whole cloth. Trump may yet make the Court even more pliant. If she doesn’t resign immediately, Justice Sonia Sotomayor, who is 70 and has suffered from Type I diabetes since childhood, might not survive Trump’s term. If Trump replaces her, the Court would have a 7–2 majority of Republican appointees. The Court’s ultraconservatives (Justices Clarence Thomas, Samuel Alito, and often Neil Gorsuch) still wouldn’t command a reliable majority, but they might get other justices to go along with them, as they did in the Fourteenth Amendment and immunity decisions.
But it’s difficult to see how even the most slavish Supreme Court could justify allowing Trump to run for re-election to the presidency in 2028. After all, Republican appointees still claim to be textualists—and the text of the Twenty-second Amendment is exceedingly clear.
In Trump v. Anderson, the Court ruled that the ban on insurrectionists running for office found in Section 3 of the Fourteenth Amendment was currently unenforceable because Section 5 “makes Congress, rather than the States, responsible for enforcing Section 3” and this “power is critical when it comes to Section 3.” Absent “appropriate legislation” to enforce Section 3’s ban on insurrectionists running, the only eligibility criteria for the presidency remain those spelled out in Article II, Section 1, Clause 5: being 35 years old or older, being a “natural born Citizen,” and having “been fourteen Years a Resident within the United States.”
But the Twenty-second Amendment says nothing about enforcement. If its ban on presidents running for a third term required further implementing legislation, the amendment would have said so. So this provision must be directly enforceable, just like Article II’s eligibility criteria. Surely, if a 25-year-old ran for president, every state would be justified in excluding him or her from the ballot.
This difference makes sense. After all, the Fourteenth Amendment turns on a difficult legal and factual determination: What counts as “insurrection” or “rebellion”? Absent guiding legislation, courts in various states might disagree on this question, producing a patchwork of decisions about which presidential candidates can run, as the Court noted in Anderson. By contrast, the Twenty-second Amendment turns on a simple factual question: Has the candidate already been elected twice to the presidency?
Trump might want to run for president again at the top of the ticket. He might bristle at playing second fiddle to anyone, even briefly. But if Vladimir Putin could pretend to play second fiddle to Dmitry Medvedev for four years as prime minister (while remaining in de facto control), surely Trump could bear the indignity of having his name appear below JD Vance’s on the 2028 ballot—provided everyone knows that Trump remains in charge.
Why Trump Can Run for Vice President
IN A 1999 LAW REVIEW ARTICLE, Bruce Peabody and Scott Gant concluded that “a President nearing the end of his or her second term and determined to stay in office might run as Vice President with the idea that the President-elect would step aside, allowing the already twice-elected President (and Vice President-elect) to serve a third term.”
Critically, the Twenty-second Amendment only bars a person being “elected to the office of the President more than twice.”1 It doesn’t prohibit serving or acting as president again, as proposed versions of the amendment would have done. The amendment was simplified before Congress sent it to the states for ratification to focus on avoiding a repeat of what President Franklin Roosevelt did: running for more than two terms.
But would Trump be eligible to run for vice president? The Twelfth 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.” If the Twenty-second Amendment makes Trump ineligible for the presidency, why wouldn’t he also be ineligible for the vice presidency?
Of course, originally, the Twelfth Amendment could only have meant “ineligible” to refer to the three criteria spelled out in Article II (as noted above). But even if one assumed that the Twenty-second Amendment expanded the list of eligibility criteria, Peabody and Gant conclude, the Twelfth Amendment “could be read as affecting only persons who would become President.” This distinction is crucial.
The Constitution originally provided that, upon the death or resignation of a president “the Powers and Duties of the said Office . . . shall devolve on the Vice President.” This ambiguous phrasing created great confusion the first time a president died in office. John Tyler succeeded to the presidency after the death of William Henry Harrison in 1841. Mocked as “His Accidency,” Tyler was plagued by legal doubts about his authority as a merely “acting” president. The Twenty-fifth Amendment, ratified in 1967, ended such confusion by making clear that the “the Vice President shall become President.” Yet the amendment left untouched two provisions of the original Constitution by which someone may “act as President”: If both the president and vice president are unable to serve, succession would go to “what Officer shall,” according to legislation, “act as President.” Likewise, whenever an Electoral College deadlock sends an election to the House, if the House deadlocks, the vice president could “act as President.”
Thus, Peabody and Gant reason, even “if the meaning of ‘eligibility’ under the Twelfth Amendment was transformed with the adoption of the Twenty-Second Amendment, the Twenty-Second Amendment still does not render twice-elected Presidents ‘constitutionally ineligible to the office of President’”—because they could, through these two extant provisions, become acting President—“and it therefore cannot be said that the Twelfth Amendment prohibits a twice-elected President from serving as Vice President.”
Such close textual analysis is how the Supreme Court has reasoned for decades. But even those who might appeal to legislative history or the “spirit of the Constitution” would reach the same conclusion, Peabody and Gant explain. So it’s hard to see on what legal basis any judge, whatever their ideology, could object to Trump returning to the presidency immediately after being inaugurated as vice president.
Trump Will Do Anything . . .
TIMOTHY SNYDER, PROFESSOR OF HISTORY AT YALE and the most influential American scholar on authoritarianism, believes that Trump “will seek to change the system so that he can remain in power until death.” Actually, he can work within the system. The only constraints on his ability to remain in office are political, not legal.
Trump has now won the Republican nomination three times—the first time taking 58 percent of delegates, and the second and third times without even having to fight a primary. His grip on the party has only solidified with his latest victory. The 2028 ticket will be whoever he chooses. If he says it should be Vance—or someone even more pliant or electable than Vance—and himself, why wouldn’t the GOP rubber-stamp his decision? Why couldn’t he find someone willing to run for the presidency, only to give it up immediately?
The idea isn’t entirely novel. Peabody and Gant note that President Dwight Eisenhower toyed with the idea after opposing the Twenty-second Amendment. At a press conference in early January 1960, he said something one could easily hear Trump saying today: “You know, the only thing I know about the presidency the next time is this: I can’t run. But someone has raised the question that were I invited, could I constitutionally run for vice president, and you might find out about that one. I don’t know.” Before the convention in July, one Republican congressman seriously proposed nominating a Nixon-Eisenhower ticket and a switcheroo on Inauguration Day.
Republicans are already normalizing this idea. “We must rally behind President Trump to secure his third term,” declared Rep. Lauren Boebert on election night. Expect more of the same.
But Who Might Succeed Trump in His Third Term?
SO SAY IT’S 2029, President Vance has just resigned and Trump has become president again. Who would become the new vice president? Let’s think through some scenarios.
For starters, Trump could nominate Vance to return to the vice presidency—but the nomination would require, per the Twenty-fifth Amendment, “confirmation by a majority vote of both Houses of Congress.” So if Republicans win the White House but lose either the House or the Senate in 2028, Democrats could keep the vice presidency vacant.
If Democrats win the House in 2028, the Democratic speaker would be next in line under the Presidential Succession Act (PSA) of 1947. But if Republicans keep both the House and Senate in 2026, they could amend the PSA to skip either the speaker or the president pro tempore of the Senate or both. If Senate Republicans haven’t already abolished the filibuster across the board to enact Trump’s agenda, they could simply bypass it for this—just as they created an exception for judicial nominees. They’d have until January 2, 2029, after which the new Congress convenes.
And if Republicans lose either chamber in 2026, they could, in the lame-duck session, rewrite the PSA to skip both the speaker and president pro tempore—just in case. The succession would next fall to the secretary of state, then other cabinet officers in the order that their department was created—or whatever new order Republicans write into the PSA.
If Republicans control the Senate in 2029, with Trump’s help they could simply confirm Vance to whichever cabinet office they’ve put next in line. He’d be back in the line of presidential succession.
If Democrats control the Senate in 2029, they could block confirmation of new cabinet nominations, but Trump’s 2028 cabinet would continue to sit until removed. Could Trump, in late 2028, nominate Vice President and President-elect Vance to whichever cabinet position is next in line for the presidency? The Constitution doesn’t bar the president or vice president from holding another “office of the United States,” but it does bar any member of Congress from holding other “offices of the United States.” For a hypertextualist Supreme Court, that difference is probably enough to allow Vance to hold a cabinet office as vice president (before his inauguration) and as president (for however many minutes his sham presidency lasts). Some scholars think otherwise, but so what? Republicans have nothing to lose: Even if Vance’s appointment were somehow invalidated, succession would just fall to the next Republican cabinet officer in line under the PSA.
Vance wouldn’t love the uncertainty involved. As vice president, Trump couldn’t fire him, as he could any cabinet officer. But does anyone really think he’d balk at committing to run for president and to resign immediately? Or that he’d renege on that commitment once inaugurated? If Vance seems unreliable, Trump would simply pick another running mate.
The Medvedev Option: A Non-Starter
MIGHT TRUMP JUST DO what Putin did: pretend to play the number-two role while retaining all the real power? Staying in the vice presidency might avoid criticism about an un-democratic thwarting of the “spirit” of the Twenty-second Amendment, but why would Trump care? A disciplined autocrat like Putin might care more about the exercise of power than its trappings, but it’s hard to see Trump even pretending not to be the alpha male. What about the kind of arrangement Ronald Reagan briefly considered proposing to Gerald Ford in 1980, in which Ford would have run as Reagan’s vice president and be given much more responsibility than most vice presidents—an arrangement dubbed by the press a “co-presidency”?
Whatever the packaging, the vice presidency wouldn’t provide Trump the clear legal immunity of the presidency. In Trump v. United States, the Court held that a former president’s “immunity must be absolute” because of the “nature of Presidential power.” The Constitution vests all “executive Power” in the president and these duties are of “unrivaled gravity and breadth.” The Constitution gives the vice president just three roles: succeeding the president, counting the electoral votes, and breaking Senate ties as presiding officer. While vice presidential immunity remains murky, it cannot possibly be anything like presidential immunity.
Deal With It: Trump’s Running Again
WE’RE LONG PAST DISMISSING Trump’s “silly ideas.” He will do whatever it takes to stay in power until he dies. He’ll do exactly what Eisenhower joked about—what he himself has hinted at. No law or constitutional restriction on its own will stop him, a lesson driven home repeatedly during the Trump years: norms and laws and constitutional provisions are only as good as the people willing to enforce them. If Trump is determined to be a candidate in the 2028 election, the only thing that will ensure he doesn’t get another term is if he loses so clearly and decisively that even he can’t hold on to power by lying about the election and inciting violence.
The “______/Trump 2028” campaign has already begun. Most of us just haven’t accepted that fact yet.
Berin Szóka is president of TechFreedom, a nonpartisan think tank focused on internet regulation, free expression, constitutional law, and the rule of law.
Italics added here and in subsequent quotations.
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