The (Flawed) Argument for How Elon Musk Could Become President (and Trump a third term)
My colleague, Larry Tribe, argues that President Trump could indeed serve a third term under the Constitution. As he tweeted yesterday,
This argument is wrong. It takes more than a tweet to show why.
Let’s start with why it seems right. The 22d Amendment — ratified to limit the terms of President to just two—says, in part, this:
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.
This language plainly means that Donald Trump could not be on the ballot in 2028 as a candidate for President. He was “elected” once in 2016; he was “elected” again in 2024; he therefore cannot be “elected” a third time.
But what if he ran for Vice President, and then, once elected, the President resigned?
That depends, as Tribe rightly suggests, on whether Trump could be elected as Vice President. The 22d Amendment does not address that. The 12th Amendment does. This is the last sentence of the 12th Amendment:
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Tribe reads the word “ineligible” in this sentence in a completely plausible way: As he reads it, “ineligible” refers to the qualifications for President — 35 years old, natural-born, maybe not-an-insurrectionist?—and obviously, except perhaps for the insurrectionist bit, Trump is eligible to be President. (Before the Supreme Court so held, I had argued that the insurrection did not disqualify Trump.)
But that is not what the word “ineligible” in the 12th Amendment means. As Michael Rosin argues, in 18th century usage, “eligible” in this context meant electable. Trump is not “[electable] to the office of President,” because of the 22d Amendment. Therefore, Trump could not be elected as Vice President in 2028.
Rosin’s argument is more extensive than this (here’s a short piece in ELB), but you can catch a glimpse of the point in an exchange he cites at the Constitutional Convention involving Gouverneur Morris, John Rutledge, and Alexander Hamilton.
The issue was how to select the president. Their objective was to make the president independent of Congress.
Morris saw two ways to do that: either make him president for life, or “make him eligible by the people.”
Rutledge thought he would be sufficiently independent if selected by Congress for a single 7-year term. Hamilton didn’t like that idea. Instead, as Rosin reports, Hamilton argued:
He is not re eligible, he will therefore consider his 7 years as 7 years of lawful plunder. Had he been made re-eligible by the legislature, it would not have removed the evil, he would have purchased his re-election.
Notice, Rosin directs, both uses of the term “eligible”: Morris’ “eligible by the people” and Hamilton’s “eligible by the legislature.” Both are describing the ability of someone to be elected, in Morris’ case, by the people, in Hamilton’s case, by Congress.
Rosin argues that is the same way that we should read the words of the 12th Amendment. Trump is therefore “constitutionally ineligible to the office of President” because the 22d Amendment makes him not qualified to be elected a third time as President.
To quote Tribe, “QED.”
That may not be the end of this argument, however (though in my view, it should be). As Rosin described to me in a conversation yesterday, there’s one more gambit the President’s lawyers might make: the 25th Amendment. (And this is the gambit grounding the clickbait title of this essay.)
Section 2 of the 25th Amendment states:
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.
So imagine Vance and someone else run for President in 2028; they are elected; the someone else resigns; Vance nominates Trump; Congress votes by a majority to make Trump Vice President. Vance then resigns.
According to the plain text of Section 2, this gambit should work. The amendment says nothing about the qualifications for the Vice President. So nothing should stop Vance appointing Trump. Bingo!
Yet what this reading implies is that so too could Vance nominate Elon Musk (not a natural-born citizen), or the King of England (not a citizen), or Barron Trump (not 35 years old). None of them would be “eligible” to be President, under either Tribe’s or Rosin’s reading of that term. But the 25th Amendment does not limit the potential nominees to those “eligible to the office of President” as the 12th Amendment does.
This reading of the 25th Amendment is wrong as well, because the Constitution is to be read as a whole. At least where there is no clearly manifested purpose in the Framers of the 25th Amendment to remove all constitutional barriers to someone becoming President (by replacing the elected Vice President), the parts should be read together. So read, the only people who could become Vice President under the 25th Amendment are those who are eligible to be President. And those do not include, I, tutored by Rosin, would argue, people who have already been elected twice.
But lest you think this question will go away, there is another side to this argument: Yes, the implication of this argument is that Musk could be Vice President, even though he is not a natural-born American. But the Amendment includes a check on the President’s power to nominate a replacement Vice President: Congress. So, this argument would go, we should read the 25th Amendment as an effective repeal of the earlier strategy for constitutionalizing the qualifications of the President: Under the 25th Amendment’s approach, the only qualification (at least for Vice President) is that Congress approve it.
It’s not an insane argument. It’s just not correct. Indeed, the author of the 25th Amendment, Senator Birch Bayh, was expressly asked whether someone not otherwise qualified to be president could use Section 2 to become President. “I would think not,” Bayh said (this drawn from John Feerick’s article):
I would think, certainly, that just the adding of an amendment to the Constitution does not repeal previous requirements that have been put on this office . . . .
There was no intention to do so, he said, observing that there is no argument that
the 12th amendment setting up new electoral procedure does not carry
over all the qualifications of the President in the 12th amendment.
This isn’t a path to making Musk President, or to giving Donald Trump a third term. Both are “constitutionally ineligible to the office of President” — which means neither could be elected President or Vice President.
One final note on process: This is why I love the law. Because what is to matter in the law is not position, or power, but reason.
Larry Tribe is America’s preeminent constitutional lawyer and academic. Though we share an appointment to the same law school, we don’t stand on equal ground.
Michael Rosin is not an academic. He has no appointment in any law school. He never even went to law school. He just happens to be the person in America who has studied and knows more about the selection of the President than anyone I have ever met. I’ve worked with Michael on every case involving the President that I’ve been involved with. And I believe I’ve litigated more cases involving the constitutional method of electing the president than anyone else — counting the electors cases as well as the four cases raising a constitutional challenge to “winner take all” in the Electoral College.
Yet Michael’s argument wins not because of who he is, but because of what he says. Reason, not power, or position, or prestige. It is why I became a lawyer, as I first explained in my first book 26 years ago. Here’s that passage from Code and Other Laws of Cyberspace (1999).
We live in a time when the sane vilify lawyers. No doubt lawyers are in part responsible for this. But I can’t accept it, and not only because I train lawyers for a living. I can’t accept it because etched into my memory is a picture my uncle [Richard Cates] sketched, explaining why he was a lawyer.
In 1974, [Cates] had just returned from Washington, where he worked for the House Committee on Impeachment — of Nixon, not Clinton, though Hillary Rodham was working with him. I pressed him to tell me everything; I wanted to hear about the battles. It was not a topic that we discussed much at home. My parents were Republicans. My uncle was not. My uncle’s job was to teach the congressmen about the facts in the case — to first learn everything that was known, and then to teach this to the members of the committee. Although there was much about his story that I will never forget, the most compelling part was not really related to the impeachment. My uncle was describing for me the essence of his job — both for the House and for his clients:
It is what a lawyer does, what a good lawyer does, that makes this system work. It is not the bluffing, or the outrage, or the strategies and tactics. It is something much simpler than that. What a good lawyer does is tell a story that persuades. Not by hiding the truth or exciting the emotion, but using reason, through a story, to persuade.
When it works, it does something to the people who experience this persuasion. Some, for the first time in their lives, see power constrained by reason. Not by votes, not by wealth, not by who someone knows — but by an argument that persuades. This is the magic of our system, however rare the miracles may be.
Rare are those miracles, perhaps. Rarer today than 50 years ago. But we certainly need more of that magic everywhere. Especially here, today.
