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Quick Take
President Donald Trump said in a March 30 interview that “there are methods” for him to serve a third term in the White House, and a Daily Mail article referred to a “loophole” in the 22nd Amendment that would make it possible. But legal experts told us the “loophole” legal argument is “implausible” and “defeats the clear intent” of the amendment.
Full Story
In a March 30 interview with NBC News, President Donald Trump said he could possibly serve a third term — as he has suggested before — even though a third presidential term is prohibited by the 22nd Amendment to the Constitution.
Asked by a reporter whether plans for an additional term have been presented to him, Trump said, “There are methods which you could do it.” NBC News asked Trump whether he was referring to “a possible scenario in which Vice President JD Vance would run for office and then pass the role to Trump,” and the president responded that “that’s one” method. “But there are others, too,” Trump said.
As we’ve written, the 22nd Amendment addresses presidential term limits, stating, “No person shall be elected to the office of the President more than twice.” The amendment was ratified in 1951 in response to President Franklin D. Roosevelt being elected four times and a consensus that there should be term limits on future presidents.
But a story published in the Daily Mail, a British tabloid, on March 29 revives a legal argument from 1999 in the Minnesota Law Review to suggest a “loophole” in the 22nd Amendment would allow Trump to serve more than two terms. A March 30 Instagram post shared the Daily Mail headline, “Revealed: How Trump could be president until 2037 due to a simple loophole in the Constitution.”
The 1999 law review article, co-authored by Bruce Peabody, who was a graduate student at the time and is now a professor of politics at Fairleigh Dickinson University, argued that the 22nd Amendment has been misunderstood and a president who had already served two terms is not prohibited from serving a third.
The “loophole” is the use of the word “elected” in the 22nd Amendment, the Daily Mail said, citing the law review article’s contention “that the Twenty-Second Amendment proscribes only the reelection of an already twice-elected President.”
“It is argued that means a twice-elected president would not be barred from later reassuming the office due to the resignation, or death, of another president,” the Daily Mail article continued. “Trump could therefore run for Vice President, with Vance as an openly recognized nominal figure at the top of the ticket. Once he is sworn in Vance could then resign, allowing his Vice President — Trump — to step into the office.”
The Daily Mail noted that the Minnesota Law Review article said an earlier constitutional amendment, the 12th Amendment, also would not stop Trump from returning to the White House for a third term. That amendment, ratified in 1804, states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
Because the 12th Amendment was written before the 22nd Amendment, it “could not have originally meant to preclude someone from being Vice President who had been elected President twice,” the Minnesota Law Review paper argued.
Amendments’ Meaning and Intent
Legal scholars told us the “loophole” argument is “implausible.”
David A. Super, a professor of law and economics at Georgetown University Law Center, said the legal argument in the Daily Mail article “is implausible, primarily because of its clear misinterpretation” of the 12th Amendment.
In an email to us, Super said that before the 12th Amendment, “the Constitution provided for the vice president to be whomever received the second-most votes for president. Although in practice everyone knew that George Washington was running for president and John Adams was running for vice president, as a legal matter both were running for president. …The Twelfth Amendment changed that by establishing separate elections for president and vice president but retained (in its last sentence) the rule that no one could run for either office without being eligible to run for president,” Super said.
“It is, of course, true that we had no Twenty-Second Amendment when the Twelfth Amendment was ratified, but its effect is to make the qualifications for the two offices identical,” he said.
Paul Gowder, a professor at Northwestern Pritzker School of Law, also told us in an email that the “loophole” argument is “pretty implausible.”
First, the argument “defeats the clear intent of the 22nd Amendment,” Gowder said. “The guy who wrote the text that got adopted as the amendment stated, on the record, his understanding of what Congress was trying to do in drafting it: to ‘prevent a man’s deliberately using the office of President in order to perpetuate himself in office; that is, for more than two terms.’ And if you believe in the loophole, not only does it mean that Trump could have more than two terms, it means that Trump could be president for life, just so long as he could keep finding people to occupy the top of the ticket.”
Second, Gowder said, “we often use the practice of prior officials as a guide to interpreting the Constitution, particularly when it comes to interpreting the powers of the presidency. … I think we should count it as strong evidence for a constitutionally meaningful consensus that no president after the 22nd Amendment was enacted has to my knowledge ever even seriously floated the idea of running for a third term.”
And third, Gowder said, “it’s just too tricky — this is a real constitutional point. One of the things that makes the Constitution different from other kinds of law is that it’s meant to be enacted by and understood by (and ultimately enforced by) the people. … It’s a kind of category mistake to read the Constitution the way you might read the tax code, looking for loopholes that the drafters snuck in to trick ordinary people into dictatorship. Instead, we read it in the context of the collective goals that its terms are intended to pursue,” Gowder said.
He added that “the Constitution wasn’t written to be an airtight formal logic proof. But that doesn’t mean that it’s proper to take a provision that obviously means ‘no more than two terms’ and cook up a Bond-villain-esque scheme to interpret it to mean ‘yes more than two terms.’”
Circumventing the 22nd Amendment
Any attempt to repeal the 22nd Amendment would be extremely difficult, Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania, told us in an interview in November.
“I don’t think there’s any realistic possibility that the 22nd Amendment could be repealed,” Roosevelt said. “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 a constitutional amendment, the House and the Senate both must approve a joint resolution with a two-thirds majority, and 75% of the states must then ratify the amendment.
An attempt to circumvent the 22nd Amendment — such as Trump ascending from vice president to president — would face challenges in court. “I think the odds of that [being successful] are extremely low,” Roosevelt told us.
“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.”
Sources
Allen, Nick. “Revealed: How Trump could be president until 2037 due to a simple loophole in the Constitution.” Daily Mail. 29 Mar 2025.
Cillizza, Chris. “Believe it or not, Donald Trump says he should get a third term.” CNN. 18 Aug 2020.
Constitution Annotated. “Twelfth Amendment.” Congress.gov. Accessed 1 Apr 2025.
Constitution Annotated. “Twenty-Second Amendment.” Congress.gov. Accessed 31 Mar 2025.
Gowder, Paul. Professor of law, Northwestern Pritzker School of Law. Email to FactCheck.org. 2 Apr 2025.
Kiely, Eugene. “Can Trump Serve a Third Term?” FactCheck.org. 15 Nov 2024.
Ronald Reagan Presidential Library & Museum. “Constitutional Amendments — Amendment 22 — ‘Term Limits for the Presidency.’” Accessed 31 Mar 2025.
Super, David A. Professor of law and economics, Georgetown University Law Center. Email to FactCheck.org. 31 Mar 2025.
Ward, Myah. “Trump at NRA convention floats 3-term presidency.” Politico. 19 May 2024.
Welker, Kristen and Megan Lebowitz. “Trump won’t rule out seeking a third term in the White House, tells NBC News ‘there are methods’ for doing so.” NBC News. 30 Mar 2025.
Source: FactCheck
