It’s already been established in the past that the line of succession skips over people ineligible to be elected President.
But was it “established” because they weren’t allowed to do it, or because they voluntarily withdrew from consideration, because of how they interpreted the laws? It’s been well-established that Trump considers his word the final word on how to interpret laws, so he’ll just say, “That was his choice, some people are saying it was a bad choice, he could have been, maybe should have been, president, but he shirked his duty, why would I do that, my duty, shirking my duty?”
The first line of the Republican playbook for the last 15 years or so has been, “Yeah, I know it’s been done that way in the past, but … what if we don’t?”
This morning I read one of the most chilling columns on this subject that I have ever seen.
The author is a conservative federal appellate judge who convincingly writes that Trump’s actions indicate he has no intention of ever stepping down as president or relinquishing the power of the presidency, and that the rest of our so-called “checks and balances” seem altogether impotent. To date no institution seems willing or able to rein him in on any matter, much less the one most central to him—that of keeping power.
Ummm … no. It skips over people ineligible to hold the office. Whether the 22nd eligibility places an additional requirement to become President beyond Article II is a topic we have discussed ad nauseum here and there are very good legal arguments that it in fact does not.
The first thing is Congress would have to rewrite the law in order to give them gatekeeping power over electoral votes rather than the ministerial ones they have. For example, expand on what electoral votes “not regularly cast” means.
Exactly - the Trump adminstration is already pissing all over the US constitution and there seems to be nobody stopping that from happening. Why would he feel especially constrained by the amendment regarding the number of terms a president can serve?
Not serve … elected to. There is a difference.
But this raises a point I brought up during the Obama birther nonsense and again by SCOTUS in the Colorado Trump insurrection lawsuit - there is no mechanism in place to prevent anyone from running for President in violation of the Constitution. Theoretically some states like Colorado ban people from the ballot if they are ineligible to the office … and we saw SCOTUS throw that out at least with regard to Amendment 14,3 but their decision left the door open that states cannot prevent any candidate for Federal office from running based on the Constitution - the Feds have to. But there is no Federal agency that can rule a candidate ineligible and the Congress just counts the votes. There is no mechanism there to throw out votes from a non-NBC for example.
tl;dr Keeping an ineligible candidate off a ballot is always someone else’s responsibility.
There’s only a difference if the words comprising the constitution and amendments matter and Trump has demonstrated they don’t matter to him.
Quite frankly I think Trump has been pretty clear—insofar as he is coherent about anything—of his intent to remain in office past 2028 even ignoring the fact that he attempted to incite an insurrection last time he was obliged to transfer the Presidency over to the rightful winner of the election, and has continued to reject the legitimacy of that election based upon no evidence whatsoever. I’m not sure why anyone would believe he would voluntarily leave office at this point if he could wield sufficient authority, either by partisan fuckery in Congress or just amassing sufficient supporters to physically oppose a transfer of power.
Stranger
By the way, I somehow lost the word “former” here in the editing process. J. Michael Luttig actually resigned his lifetime appointment as a federal judge to become corporate counsel for Boeing. Prior to that, he was reportedly considered as a potential nominee to the Supreme Court.
I still haven’t heard anyone lay out how exactly they expect the courts and states to concretely approve Trump’s 3rd presidential run. Do they expect the states to say, “Okay, we’ll put you on the ballot, Trump, despite the Constitution?” Do they expect the federal courts to say “Okay?” SCOTUS to say “No prob?”
I don’t think he’ll run. He’ll just not leave for reasons….
Well, each state would be different, but something like this:
- The GOP states that Trump will be their nominee. Sort of like in 2020 when they didn’t really have any primaries. They just hold a convention and say he is their nominee.
- Most state laws have applications to appear on general election ballots. These have special rules for major parties v. “minor” parties, and each state has different forms.
- The Secretary of State or Board of Elections or whatever process those applications and generate the ballots. This is where the SOS could determine that Trump is ineligible to appear on the ballot. This would be subject to whatever the state laws are regarding processing those applications.
- Trump and/or the GOP would appeal those rulings in any state that tried to disallow him appearing on the GOP line for the general election. Those appeals would make their way to SCOTUS, much like the Colorado case did.
- Absent explicit state laws that enforce the 22nd amendment, I could see SCOTUS saying that a state didn’t have the right to enforce the 22nd, only FedGov does. That’s roughly what they did in the CO case.
That is just how he gets on the ballot. How he gets slates of electors generated and reported to Congress, and then how Congress counts those votes in a joint session is an entirely different set of issues, with associated legal action most likely.
Regarding the possibility of Trump running as VP, on 10-27-2025 he was quoted as saying:
So that’s one avenue that I think we can rule out. Not, of course, because Trump is remotely credible or sincere about the strategy being “not right” or “too cute” – I think he simply doesn’t trust it. There are too many things that could go wrong, and he’d have to play a lot of second-fiddle. That’s not appealing for an egomaniac with his empire at stake, not to mention his freedom.
If running as VP were a sure shot, Trump would do it, but right now it’s the least sure shot on the table for him. Of course he’s the king of “we’ll see what happens”, so we’ll never really know until it happens, but it’s probably more worthwhile to game out every other scenario.
Here’s how I see it happened.
Trump is hoping the Republicans gain a two thirds majority in Congress in the 2026 elections (helped along by Republican ballot tampering). They can then introduce a new amendment to overturn the 22nd Amendment.
If they think they can swing thirty-eight state legislatures, they’ll seek to have it ratified by normal means. If not, they’ll call for “conventions” to ratify the proposed amendment. The Constitution doesn’t specify how these conventions work, so the Republicans can rig up their own system and declare it’s valid.
With the 28th Amendment enacted, the 22nd Amendment is no longer in effect. Anyone, including Donald Trump, is legally allowed to be President three or more times. The courts and state election boards will have no grounds to declare his candidacy invalid.
I don’t think that an amendment is necessary at all.
After I wrote my previous post I looked over the Missouri state laws. I don’t see anything in there that would require the SOS to refuse a candidate the thad already been elected twice, other than vague language that the Secretary of State or election authority shall determine eligibility.
And the declaration the candidate has to submit just says that “and I further declare that if nominated and elected to such office I will qualify”. It doesn’t seem to allow for the SOS to determine pre-election that a candidate doesn’t qualify.
Other states are different. I think it was NH that disallowed Cenk Uygur because he isn’t a natural-born citizen. They had a state law that allowed the SOS to verify that status prior to approving the name for the ballot.
I think getting on the ballot is probably the easy part (assuming Trump can convince the GOP it’s a good idea to just let him be the nominee; or he wins primary elections even though he’s obviously ineligible to serve). It’s what happens if/after he wins and various states decide that he isn’t eligible to be elected that is in question. And I could see SCOTUS saying that only the joint session of Congress can determine whether a candidate is ineligible to be elected under the 22nd Amendment.
So let’s say Trump wins the popular vote the same states he did in 2024, but those states refuse to send in slate with his name on them due to ineligibility under the 22A. I suppose the joint session could object and try to get those slates thrown out - it would depend on Congressional makeup at the time of the Joint Session.
SCOTUS could rule by throwing at a dart board, so it’s kind of pointless to suppose how their past rulings will bind their future rulings. But just for clarity, what they ruled in the CO case is that CO lacked authority to enforce 14A S3, in other words, only the federal government has the authority to decide what counts as insurrection against the federal government.
IMO this was correctly decided, because it’s not hard to imagine lawless red states coming up with bullshit accusations of insurrection against popular Dem candidates.
Colorado has explicit laws about this. You cannot be on the ballot if you are ineligible to be elected. And SCOTUS left this door open. They could have said that since Trump was never convicted by the Senate or under 18 USC 2383 that what Colorado did was effectively a bill of attainder (I know it wasn’t that technically) and declaring him guilty of insurrection under Amendment 14,3 without a criminal trial. But they didn’t; they made their reasoning a lot broader than it needed to be.
This right here is the problem. We can argue about “Would Trump trust someone in this VP scenario?”, but what is clear is that Trump thinks he’s “allowed” to do this. He is the only thing holding him back from doing it.
Come 2028, if no one has come up with a better plan, Trump will do this, because he’s convinced he’s allowed to do it. If he comes to believe that this is his best chance to stay in office, he’ll do it. He’ll find a Presidential candidate so weak that they’ll do whatever Trump tells them to do, and he’ll run with it.