I’m tired. Exhausted. Can’t think straight. So I’ll write a blog post!
In this case, inspired by this New York Times piece, confidently stating in its headline, “No, Trump Cannot Run for Re-election Again in 2028.” It paraphrases Kimberly Wehle of the University of Baltimore as saying that the 22nd Amendment “left no ambiguity and was intended to place a check on the president.”
In one sense, the headline is right. Donald Trump cannot be elected by the Electoral College in 2028. But in a deeper sense the article is wrong. He could become President again and serve until 2032, or whenever, as long as he could get somebody to go along with it.
In other words, Professor Wehle is not correct! The 22nd leaves quite a lot of ambiguity. And it seems as though the amendment’s writers meant it that way, simply because they didn’t want to wrestle with the details.
But first, Latin America
In Latin America, two presidents have recently gotten around their constitutions with the connivence of their Supreme Courts. One case is Bolivia. That one’s not interesting. Evo Morales got the high court to issue a risibly ridiculous ruling that basically said that freedom of expression included running for President, so the part of the constitution that prohibited running for president violated the part of the constitution that guaranteed freedom of expression. That’s such self-evident sophistry that it’s not worth considering.
It’s also not the kind of thing I’m thinking of when I say that Donald Trump could become president after January 2029.
El Salvador is more relevant. Article 152, section 1, of the constitution reads:
The following shall not be candidates for the President of the Republic: (1) He who has filled the Presidency of the Republic for more than six months, consecutive or not, during the period immediately prior to or within the last six months prior to the beginning of the presidential period.
How did the Supreme Court get around that?
Well, they declared that the first clause means what it says: if you served as President within six months of the next inauguration day, then you can’t run for president. So Nayib Bukele could simply step down six months before the election, hand over the reigns to somebody else temporarily, and run for President again.1
And that’s what President Bukele did.2 Now, the move pretty clearly violates the spirit of Article 152. And if you think I’m being vague when I say that, there are three other articles in the Salvadoran constitution spelling out exactly what that spirit is supposed to be.
Article 75: “The rights of citizenship are lost: … (4) By those who subscribe to acts, proclamations, or adherences to promote or support the re-election or continuation of the President of the Republic, or who employ direct means towards this end.”
Article 88: “Alternation in the office of President of the Republic is indispensable for the maintenance of the established form of government and political system. Violation of this norm makes insurrection an obligation.”
Article 248: “Under no circumstances, may the articles of this Constitution be reformed which refer to the form and system of government, the territory of the Republic, or alternation in the office of the President of the Republic.”
But Bukele’s pretend-to-step-down-for-six-months ploy didn’t violate the text of Article 152, and so the Supreme Court let it stand. You might disagree with the decision—and it pretty clearly went against the spirt of articles 75, 88, and 248—but it wasn’t specious in the way that the Bolivian “human rights” hand-waving was just specious.3
And now, back to not-Latin America
The 22nd Amendment to the United States constitution reads as follows:
No person shall be elected to the office of the President more than twice, 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 to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
What’s the loophole? Easy. The amendment only talks about being elected President, that is, being chosen by the Electoral College. It says nothing about serving as President should you attain the office in some other way. And the most obvious other way is to run as the vice-president for somebody else, get elected Vice-President, and then have the new president step down right after she’s inaugurated.
Alternatively, if that’s a bridge too far, have the current President become Speaker of the House right after the election. Then the President-elect and Vice-President-elect both declare that they won’t assume office and the Speaker becomes President in their stead on Inauguration Day under the terms of the 20th Amendment.
Is that constitutional? Well, probably yes. It violates the spirit of the 22nd Amendment, but unlike El Salvador there are no other articles in the U.S. Constitution indicating what that spirit should be. Now, it is true that the 12th Amendment does say, “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.” But the 22nd doesn’t say that somebody who has been elected twice as president is no longer eligible to serve as president — in fact, early versions did say that, in those words, but Congress changed it before approving the amendment! (See below.) Rather, it says that such a person can no longer be elected president. And if you don’t agree with that, then there’s always the Speaker gambit.
Congress deliberately decided to discuss elections only
It is isn’t an accident that Congress didn’t use the words “serve” or “eligible” in the 22nd Amendment. Scott Gant and Bruce Peabody pointed out that the wording of the first draft of the amendment was much clearer:
No person shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms. [Italics added.]
It then got revised to read:
Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.
The Senate Judiciary Committee rewrote as follows:
A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.
All three versions used words like “chosen,” “serve,” or “eligible.”
On the Senate floor, Senator Warren Magnuson (D-Washington) complained that the language was too complicated. “When is a man Acting President? When does he assume the office? [To] what period he should be limited [when] elevated to the office of President through circumstances beyond his control?” Magnuson didn’t want to stop somebody who became President by means other than election from running for office.
This created a lot of wrangling, which Senator Robert Taft (R-Ohio) ended by proposing the current language, which focused only on elections.
People knew that the language was vague. In 1960, President Eisenhower joked with reporters about running for Vice-President. To be fair, however, the New York Times article that recounted the press conference also stated (without attribution) that Eisenhower’s “inner circles” discussed in jest the possibility and decided that he would be ineligible to serve. So Ike’s advisors, while not taking the idea seriously, thought that the 22nd Amendment’s spirit was about eligibility.
Maybe so! But the amendment mentions only elections and Congress deliberately decided against clearer language.
SCOTUS follows the election returns
Now, there are arguments in the other direction! I don’t find them particularly convincing, but they’re not specious. Maybe Congress did mean to say “serve” when it wrote “elect.” Shirley, they didn’t intend to leave so obvious a loophole in the Constitution!
If Trump tries for a third term using the above strategies but incites a massive public outcry and collapses in the polls, then it is entirely possible that even an originalist Supreme Court would put the kibosh on the attempt.
But imagine the circumstances under which Donald Trump would play either the Veep or Speaker card. He would have to have aged well. And he would have to be popular! Otherwise he’d collapse in the polls the minute he tried the stunt. So for the gambit to work President Trump would have to be exceedingly well-regarded by the voting public in 2028.
In those circumstances, is SCOTUS going to rule that Donald Trump can’t serve a third term if he’s elected Veep and then the President resigns?4 Really? The will of the people be damned? Rejecting the plain text of the 22nd Amendment in favor of a more nebulous argument about its spirit? It ain’t like “serve” didn’t mean “serve” in 1947, or “elect” didn’t mean “elect”; we’re not parsing 18th-century usage here. And Congress did deliberately reject clearer language. There is a clear originalist logic to allowing a third term won in this way.
Bukele on the Potomac
In other words, if President Trump is popular enough in 2028, then he can do an end-run around the 22nd Amendment. And I would be shocked if the courts stopped him—for what it’s worth, I don’t think that the courts should stop him, given that the amendment’s language is pretty clear, and I think rulings that use penumbras and emanations weaken the rule of law.

Of course, President Trump would have to be extraordinarily popular in ‘28. A “normal” level of popularity might get him Republican buy in, of course. But even attempting an end-run around the 22nd could cost the GOP an otherwise winnable election.
But if he’s popular enough, against whoever the opposition turns out to be, then he could do it. Just like Bukele.
So the way to stop a third Trump term is simply to present a better opposition and hope that it looks better in the eyes of the public than four more years of Trumpism.5 Don’t count on the 22nd to save you if he is successful enough in the eyes of the public.
He didn’t really step down. Nor did he hand the reigns over to his Veep, Félix Ulloa, who also stepped down to run for re-election. Rather, Bukele handed over his executive powers to his secretary, Claudia Rodríguez de Guevara. The National Assembly needed to ratify Rodríguez as Acting President, but that wasn’t a problem. Everyone knew that Bukele was still in charge.
It’s not how I would have decided it, however, but that’s only because I would have taken seriously the implications of articles 75, 88, and 248, none of which make any sense if you can get around Article 152 as easily as Bukele did. Moreover, it’s pretty clear that the “period immediately prior to” refers to the entire presidential term, not some amorphous block of time. But the writers of the Salvadoran constitution could have and should have used the terms “plazo” or “mandato,” which would have made it clear that they meant “term,” and not the vaguer “periodo.”
For the Speaker version of this ploy, both the President and Vice-President would need to resign to allow Speaker Trump to assume the presidency.
Alternatively, you could hope that Trump’s putative incompetence and bad will wrecks the country, angering the voters enough to insure that he won’t even think about running again, but that’s a terrible thing to hope for.