US election shock: How Trump or Obama could use ‘loophole’ to gain third term as President

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Under US law, he can only stand for re-election once. But there is a Presidential line of succession, with the first being Vice-President, followed by Speaker of House of Representatives, President pro tempore of the US Senate, Secretary of State, Treasury Secretary, Defence Secretary and Attorney General followed by the other Cabinet Secretaries in order of the creation of their post. There may be a legal loophole in which a two-term President can get a third term, Dr Kyle Kopko of Elizabethtown College, a constitutional law expert told “There is some disagreement over whether a former two-term president (at least those who served full terms of office) could serve as vice president in a future administration.

“To my knowledge there isn’t a statutory provision that would prevent this; but the Twelfth, Twenty-second, and Twenty-fifth Amendments provide some guidance.”

The 12th amendment stipulates electors must cast distinct votes for President and Vice-President, as opposed to two votes for President as previously the candidate with most votes would become President and the runner-up would be Vice-President, which meant in 1796, Federalist John Adams was elected President but Democratic-Republican Thomas Jefferson was elected Vice-President.

The 22nd amendment says an individual can only be elected to the office of President twice and if taking the position on the removal of a President, can stand for re-election twice if they were President for less than two years of the remaining term of their predecessor.

George Washington opted not to run for a third term and his successors stuck to this precedent, although Teddy Roosevelt did run for a third term several years after he left office but lost, when Franklin Roosevelt won a fourth term, Congress introduced the 22nd amendment.

The 25th amendment clarifies the Vice-President becomes President as opposed to acting President and establishes that if the position of Vice-President becomes vacant, the President’s nominee to fill the post must be approved by both Houses of Congress, whilst also establishing a protocol for responding to Presidential disabilities.

Dr Kopko explained: “In short, I think one could make the case that there is a distinction between being elected and serving as vice president (through the appointment process). The Twelfth Amendment specifies that ‘no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.’

“This provision applies in the context of the Electoral College. On one hand, one could argue that this is a matter for Congress to resolve when counting Electoral College votes. Congress could determine if a candidate meets the criteria needed to serve as president or vice president.

“If so, they would count their Electoral College votes. If the Congress believes a candidate is ineligible, they would not count those votes. It’s possible that the Supreme Court would consider this a political question (in which a task or power is the sole purview of a given branch of government because the Constitution textually commits an issue to that branch of government), and therefore the Court may not rule in such a case.”

However, Dr Kopko added: “On the other hand, if a former president is constitutionally ineligible to serve again under the Twenty-second Amendment, it’s possible that the Supreme Court could decide that a candidate is constitutionally prohibited from being elected to that office. In which case, Congress (specifically the Senate) would have to resolve the vacancy in the vice-presidency, or it’s possible that the new president would have to make a nomination under the Twenty-fifth Amendment.”

There is major debate around whether or not becoming President for a third term, through the line of succession is barred by the 22nd amendment, which prohibits someone from being “elected” to the office more than twice.

Dr Kopko adds: “So, for example, could a former president be nominated as vice president under the Twenty-fifth Amendment if there is a vacancy in the office?

“Remember, the Twelfth Amendment and Twenty-second Amendments seem to emphasize assuming the office through the electoral process. The Twenty-fifth Amendment provides for a confirmation process, not an electoral process.


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“The Twenty-fifth Amendment states that “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” This seems to suggest that once Congress confirms that individual, they become vice president and they (Congress) are the sole judge in making that determination. In that case, the Supreme Court may not hear such a court challenge, again because it could be considered a political question.”

Dr Kopko doubts we could ever see a situation where a former two-term President runs for Vice-President but acknowledged it was not certain what would happen if it was attempted: “In short, this has never been tested before and there’s not telling what the federal courts may do if they are asked to intervene.

“I think it’s fairly unlikely that a former two-term president would ever run to be vice president, and perhaps voters would even be suspect of that.

“If a former president were to serve a vice president, I think there is a stronger chance of that surviving a legal challenge if it were to happen through the appointment process as outlined in the Twenty-fifth Amendment.”

The Supreme Court of the United States is the highest court of the United States, four justices were appointed by Democrat Presidents and five were appointed by Republican Presidents, however, in the past conservative-leaning judges have been appointed by Democrats like John F Kennedy and liberal-leaning judges have been appointed by Republicans like George HW Bush.

There is a maximum of 18 people in the line of succession, currently.

Transport Secretary Elaine Chao would be 14th but is excluded as she is not a US citizen by birth, one of the requirements to become President, along with being over the age of 35 and be a US resident for the previous 14 years.

The current line of succession is Mike Pence, Nancy Pelosi, Chuck Grassley, Mike Pompeo, Steve Mnuchin, Mark Esper, William Barr, David Bernhardt, Sonny Perdue, Wilbur Ross, Eugene Scalia, Alex Azar, Ben Carson, Dan Brouilette, Besty DeVos, Robert Wilke and Chad Wolf.

Mrs Pelosi is the only non-Republic in the line, as the Democrats hold a majority in the House of Representatives after victory in the 2018 midterm elections.

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