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u.s. constitution
We Should Take Trump’s Desire to Serve a Third Term Seriously
Why should we expect the Supreme Court to step in and declare Trump ineligible to run in 2028 if the court refuses to enforce a state’s decision to remove him from the ballot under the insurrectionist clause of the 14th Amendment?
Dec 12, 2024
If we have learned anything about U.S. President-elect Donald Trump over the past decade, it’s that even his most outlandish threats against democracy should be taken seriously. This applies not only to his promises to exact revenge and retribution on his political opponents and critics, but also to his expressed interest in serving a third term (or more) as president.
Trump has been musing about serving three terms for a long time. In a 2018 fundraiser with donors at Mar-a-Lago, he praised Chinese President XI Jinping for being elected president for life, calling Xi “great,” and suggesting, “Maybe we’ll have to give that a shot someday.” At a campaign rally in Wisconsin in August 2020, he declared: “We are going to win four more years. And then after that, we’ll go for another four years because they spied on my campaign. We should get a redo of four years.”
There is no reason to think Trump’s MAGA base would raise any objections to keeping their dear leader in power.
His latest remarks on the subject were delivered on November 13, when he told a gathering of House Republicans, “I suspect I won’t be running again, unless you say, ‘He’s so good, we’ve got to figure out something else.’”
Although widely characterized as a joke, the third-term talk cannot be dismissed as just another zany part of Trump’s rambling standup schtick that has seen him praising Hannibal Lecter, extolling the size of Arnold Palmer’s penis, and condemning windmills for driving whales crazy. Nor can it be taken for granted, as is commonly done, that the 22nd Amendment would preclude Trump from securing a third stint behind the Resolute Desk.
The 22nd Amendment provides:
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.
By its terms, the amendment prohibits presidents from being elected more than twice. It is silent as to whether a president can legally assume office more than twice by other means.
The distinction is critical because the hardcore reactionaries who dominate the Supreme Court, where any 22nd Amendment challenge involving Trump would wind up, consider themselves to be strict “textualists.” This means that they profess to focus on the plain meaning of the words contained in the Constitution, regardless of the practical consequences. As Supreme Court Justice Amy Coney Barrett put it in her October 2020 Senate confirmation hearing: “I interpret the Constitution as a law and… I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.”
The exact meaning of the 22nd Amendment, however, has been the subject of academic debate since the measure was ratified in 1951. In a 1999 law review article published well before Trump became a reality TV huckster much less a presidential hopeful, legal scholars Bruce Peabody and Scott Gant argued that a twice-elected president would not be prohibited from joining a new electoral ticket as a vice presidential candidate, and if elected, would not be precluded from ascending to the presidency if the head of the ticket subsequently died or resigned.
Given the degeneration of the Republican Party into a cult of personality, it is not at all unthinkable that if Trump is still physically fit in 2028 that he and JD Vance could switch places on the GOP ticket, with the goal of having Vance elected and then stepping down to allow Trump to return to the helm. There is nothing unconstitutional on its face about such a scheme. And there is no reason to think Trump’s MAGA base would raise any objections to keeping their dear leader in power.
A less likely route back to the Oval would be for Trump to be elected speaker of the House, assuming there is a Republican majority in the lower chamber in 2029. The speaker is second in line to the presidency under the Presidential Succession Act of 1947, and does not have to be a member of the chamber. There was considerable chatter in 2023 about Trump running for the speakership, and that talk could easily be revived to facilitate a third Trump term with the proper resignations of newly elected GOP stand-ins as president and vice president.
If both of those scenarios appear beyond reach, Trump could simply declare his candidacy for a third term and defy anyone to stop him. While such a move would be in direct conflict with the 22nd Amendment and would seemingly require the amendment to be repealed in the fashion of the 21st Amendment, which negated the 18th and ended prohibition, some pundits on the radical right are already agitating for “Trump 2028,” contending that the 22nd Amendment is inherently undemocratic and thus ripe for repeal.
But what if Trump, emboldened by a second term, decides to skip the laborious process of amending the Constitution altogether? Writing last February in the online journalLawFare, former associate White House counsel Ian Bassin asked why we should expect the Supreme Court to step in and declare Trump ineligible to run in 2028 if the court refuses to enforce a state’s decision to remove him from the ballot under the insurrectionist clause of the 14th Amendment.
The insurrectionist clause is simple and straightforward, and appears tailor-made for Trump, stipulating that “No person shall … hold any office… under the United States… who, having previously taken an oath… to support the Constitution… shall have engaged in insurrection or rebellion.”
Bassin’s article was published a month before the Supreme Court answered his question with its disastrous and hypocritical ruling inTrump v. Anderson that overturned Colorado’s decision to deny Trump a place on its 2024 presidential ballot. The court held that only Congress could enforce the insurrectionist clause. And even then, the court explained, Congress would have to enact a new statute to authorize the removal of an insurrectionist.
Prior to Anderson, a broad array of constitutional law experts, including liberal Harvard Law professor Laurence Tribe and retired conservative federal judge J. Michael Luttig, had argued that the insurrectionist clause was “self-executing” and required no enabling legislation, but only action by the courts for implementation. The Supreme Court slammed the door on this argument in Anderson, while potentially opening another on the self-executing nature of the 22nd Amendment in a future case.
Even if the Supreme Court were to rule against a Trump third-term bid, what would stop Trump from just ignoring the court’s commands? As Alexander Hamilton wrote long ago in Federalist Paper No. 78, “The judiciary… has no influence over either the sword or the purse… It may truly be said to have neither FORCE nor WILL, but merely judgment.”
Both Andrew Jackson (in a case involving the seizure of Native American lands) and Abraham Lincoln (on habeas corpus) defied the Supreme Court. Trump would no doubt love to outdo them both.
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Certify the ERA: Biden’s Historic Chance to Cement Gender Equality in the Constitution
Recognizing the ERA honors the constitutional amendment process and sets a precedent for advancing democratic principles. By certifying it, President Biden would reaffirm the Constitution as a living document.
Dec 07, 2024
For a century, the Equal Rights Amendment—or ERA—has symbolized hope and justice. Drafted in 1923, the ERA declares, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Approved by Congress in 1972 and ratified by the requisite three-fourths of states—culminating with Virginia in 2020—it has met all constitutional requirements to become the 28th Amendment. Yet its certification has been unjustly delayed.
President Donald Trump ignored it, and President Joe Biden now has the opportunity to address this injustice and reaffirm his commitment to equality and the rule of law by giving notice of its passage to National Archivist Colleen Shogan to publish the ERA.
The Constitution evolves to reflect America’s progress and values. Certifying the ERA would mark a historic step in rectifying the foundational omission of gender equality. Opponents argue that Congress’ seven-year ratification deadline and rescissions by six states invalidate the ERA. However, the American Bar Association (ABA), representing over 400,000 legal professionals, rejected these claims in a 2023 resolution. The ABA asserts that Article V of the Constitution prohibits Congress from imposing deadlines or states from revoking ratifications.
The Equal Rights Amendment is more than legislation—it promises that America values all citizens equally.
Recognizing the ERA honors the constitutional amendment process and sets a precedent for advancing democratic principles. By certifying it, President Biden would reaffirm the Constitution as a living document and uphold the rule of law.
Although the United States is seen as a global leader, it lags behind 76% of countries that guarantee gender equality in their constitutions. Enshrining the ERA would signal America’s commitment to justice and human rights. A 2016 ERA Coalition survey found that 94% of Americans support a constitutional amendment ensuring gender equality, highlighting the widespread public mandate for this change.
President Biden has long championed equality, from his work on the Violence Against Women Act to advancing gender equity through executive actions. Certifying the ERA would cement his legacy as a president who expanded civil rights and upheld fundamental freedoms.
Current federal and state laws against sex discrimination are inconsistent and subject to change. Recent Supreme Court decisions embracing originalism threaten decades of progress in gender equality. By enshrining the ERA in the Constitution, President Biden can ensure permanent protections that surpass the vulnerabilities of statutory laws.
Certification would fortify gender equality as an unassailable right and inspire progress in other areas of civil rights. The ERA offers a foundation for broader justice, creating a ripple effect across communities.
Current federal and state laws addressing gender discrimination, pay disparities, violence against women, and discrimination against pregnant individuals are inconsistent and vulnerable to shifts in political and judicial interpretation, with recent Supreme Court decisions embracing originalism threatening decades of progress. By certifying the Equal Rights Amendment (ERA) as part of the Constitution, President Biden can establish permanent, unassailable protections against such injustices, ensuring that gender equality is enshrined at the highest legal level. This action would safeguard the progress made and provide a foundation for advancing broader civil rights, creating a ripple effect of justice and equity across communities.
The Equal Rights Amendment is more than legislation—it promises that America values all citizens equally. As we celebrate 100 years since its inception, the time has come to fulfill that promise. The ERA has met all constitutional requirements, and the American people overwhelmingly support its inclusion in the Constitution.
President Biden must seize this moment to notify the National Archivist, ensuring the ERA’s certification as the 28th Amendment. This is not just a legal or political issue but a moral imperative. Certifying the ERA would reaffirm America’s dedication to equality, justice, and the rule of law.
By taking this bold step, President Biden would inspire future generations, honor those who fought tirelessly for equality, and secure a brighter, fairer future for all. Let this act of leadership define his presidency and the nation’s commitment to its highest ideals.
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SCOTUS Has Enabled Fascism in America; Will the Senate Intervene?
If the majority on the Supreme Court thinks that the leader they have enabled will allow them to regulate his actions, it can only be because of their ignorance of history.
Dec 03, 2024
The Supreme Court in Trump v. United States has enabled Fascism in America.
We can see why if we examine the best book I know about Nazi Germany, Ernst Fraenkel’s The Dual State. Fraenkel was a German-Jewish attorney in Weimar Germany. He continued to practice after the Nazis came to power, emigrating to the United Kingdom in 1938 and to the United States in 1939. In The Dual State, published shortly after he arrived in the United States, Fraenkel characterizes the nature of the Nazi state, showing how Adolf Hitler ruled using prerogative powers. Fraenkel draws an analogy between Hitler’s rule and the king’s use of prerogative powers prior to the English Revolution in the 17th century.
Fraenkel shows, well before the events, how, after the court’s decision, as Sonia Sotomayor stated in her dissent, “the President is now a king above the law,” a king with the ability to act arbitrarily, without fear of sanction, in violation of the constitutional restraints the English Revolution sought to impose on the King in the 17th century, and the restraints that prior to the court’s decision, the U.S. Constitution was understood to impose on the president.
The clearest indication, so far, that Trump intends to rule using prerogative powers is his desire to infringe on the Senate’s authority to confirm or reject his appointments.
In patrimonialism, agents in the state function as “personal servants” of the leader. They are the vehicle for the expansion of the scope of the leader’s power, which is enhanced to control areas previously understood as outside the executive’s purview, including many that were previously legislative or judicial.
Charles I was king within an institutionalized state. He was able to claim that his misuse of prerogative powers, substituting them for actions that fell within the scope of parliamentary powers, was legitimate. When Hitler was named chancellor, he quickly moved from an illegal expansion of his powers to a coup d’état, governing using arbitrary prerogative powers. Like Charles I, he cloaked his usurpations in legal terms, but, in fact, as Fraenkel put it, characterizing the Nazi “constitutional” state, “There are no legal rules governing the political sphere. It is regulated by arbitrary measures (Massnahmen), in which the dominant officials exercise their discretionary prerogatives. Hence the expression ‘Prerogative State’ (Massnahmenstaat),” a patrimonial state.
In Nazi Germany, “Absolute dictatorial power is exercised by the leader and chancellor either personally or through his subordinate authorities. His sole decision determines how this power shall be wielded.” In his attempt to legalize his absolute power, the support given to Hitler by traditional conservative forces, including those within a fundamentally conservative legal order, was crucial. While there were sporadic attempts to curtail Hitler’s prerogative, they failed, because of institutional deficiencies and because of the timidity of those who were in a position to defend the Weimar political and legal order. Likewise, in the USA, where the constitutional-judicial safeguards are stronger, the conservatives within the legal and political order have followed their leader like lemmings walking off a cliff. Now the Supreme Court has enabled future presidents to claim, without fear of sanction, sovereign, patrimonial power, immunity for all “official” actions undertaken as president.
Crucially, the determination of what falls under the prerogative is made by the leader himself. As Fraenkel puts it, “The decisions of the state are free from normative restrictions. The state becomes absolute in the literal sense of the word.” The Nazi state suggested that “politics” was independent of the law, “and that the definition of the boundary lines between the two rests in the hands of the political authorities themselves.” If the majority on the Supreme Court thinks that the leader they have enabled will allow them to regulate his actions, it can only be because of their ignorance of history.
While the leader’s prerogative powers may derive from an emergency, it is often the fascist movement that creates the emergency it claims the power to resolve. In Nazi Germany, Fraenkel tells us, “Normal life is ruled by legal norms. But since martial law has become permanent in Germany, exceptions to the normal law are continually made... Whether the decision in an individual case is made in accordance with the law or with ‘expediency’ is entirely in the hands of those in whom the sovereign power is vested. Their sovereignty consists in the very fact that they determine the permanent emergency...”
“From this follows the principle that the presumption of jurisdiction rests with the Normative State,” he continues. “The jurisdiction over jurisdiction rests with the Prerogative state. The limits of the Prerogative State are not imposed upon it; there is not a single issue in which the Prerogative State cannot claim jurisdiction.”
As Fraenkel contends, “the legal situation of the 17th century has been reincarnated. The tendency defeated in England in the 17th century gradually attained success in [Nazi] Germany” (my italics). Now, with the aid of the Supreme Court, we in the United States are at peril of repeating this history, of witnessing President-elect Donald Trump, or one of his successors, acting with absolute immunity in what he chooses to define as his constitutional authority, and the Supreme Court will find that they have authorized him to do so.
The clearest indication, so far, that Trump intends to rule using prerogative powers is his desire to infringe on the Senate’s authority to confirm or reject his appointments. He wants the Senate to let him make recess appointments without their consent, and he has chosen a set of candidates who are among the most unqualified and dangerous in American history. The question now is whether the Senate will guard its constitutional authority to both vet and reject Trump’s candidates. If they do not do so, they, along with SCOTUS, will chart a path to fascism.
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