The late Justice Antonin Scalia famously said that Congress does not “hide elephants in mouseholes.” His point was that courts are skeptical of using minor provisions in a statute to achieve sweeping new legal changes.
The challenge of stuffing an elephant into a mousehole came to mind this week after President Donald Trump said that he is “not joking” about considering a third term and that experts told him it is possible under the Constitution.
One often has to take such moments with a heavy dose of skepticism from a president who clearly relished handing snake-in-a-can soundbites to the media just to watch the resulting screams. If so, he was not disappointed. The media went into renewed vapors as commentators pronounced, yet again, the death of democracy.
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However, given the president’s statement, it is important to be clear about the basis for this theory, which has long been something of a parlor game for law professors on how a president might be able to circumvent the two-term limitation imposed by the 22nd Amendment.
Let’s start with the language. Ratified in 1951, the amendment was passed ironically by Republicans who were reacting to Franklin Delano Roosevelt’s decision to break from the tradition of two-term presidencies by seeking a third term. The intent was clear. They believed that serving more than two terms exposed the country to the danger of a politician occupying the office for life or prolonged periods.
To prevent that, the amendment states:
“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.”
Notably, the language includes those who were not necessarily elected to the office but “held” the office for more than two years (presumably through succession to the office due to a vacancy).
Few seriously doubt the intent of the amendment to prevent any person serving a third term to force a change of leadership in the nation.
That is when the mousehole comes in. The amendment refers to a person being “elected.” Thus, some advocates claim that the amendment does not prevent a president from “serving” a third term — only being “elected” to such a term.
This strained interpretation would mean that the drafters were solely aggrieved by the thought of someone running for the office and not serving in the office. There is no compelling historical support for that interpretation.
Under this interpretation, a two-term president could engineer a third term by running for vice president and having the elected president then resign after the inauguration.
The problem with this tactic is another amendment. The 12th amendment states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
Trump could not run for vice president because he is ineligible to be president. Accordingly, he would likely be barred from many state ballots from running for vice president.
Yet, there is an even smaller mousehole. Trump could have two people run for president and vice president as stand-in officeholders while he could engineer his election as Speaker of the House of Representatives.
After the election, they could both resign and Trump would be third in the line of succession. Putting aside the considerable level of faith in both the president and vice president resigning, the maneuver would make a mockery of the constitutional design behind the amendments.
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It would also make leading Republican candidates mockeries as types of “mini-mes” for Trump. Even the debate of such a maneuver before the election would demean figures like Vice President J.D. Vance as mere cutouts in a Constitutional sleight-of-hand.
The fueling of this talk also works in favor of those politicians and commentators who continue to claim that Trump is an autocrat committed to the destruction of the American democracy. It suggests that Trump is open to trashing constitutional traditions or language to achieve prolonged power.
In fairness to those advocating this theory, this is not an assault on democracy or a call for tyranny. It is an effort to use clever interpretations of the Constitution to allow for a third term. Voters would be aware of this maneuver when going to the polls (which is doubtful), and courts would have to uphold the interpretation (which is even more doubtful).
In the end, the powder is not worth the prize in raising this prospect. President Trump has carried off the political comeback of the century. His administration is set to make history with sweeping changes that continue to garner considerable support among the public. This claim will only undermine that legacy and the support needed to achieve it.
