One Law Professor’s Bold Idea For Strengthening Democracy: Letting Trump Run For President Again
The Constitution bars Trump from serving a third term in the White House. One brave op-ed writer asks: What if Democrats volunteered to change that?
Earlier this week, The Washington Post published a fun blog post from Yale Law School professor Ian Ayres, who invited readers to ponder a “thought experiment”: The 22nd Amendment prevents Donald Trump from running for a third term, but both Republican politicians and also Trump himself really, really want him to be able to do so. Thus, Ayres argues, Democrats have a “unique opportunity” before them, and should “seriously consider whether there might be a constitutional compromise worth exploring.”
Ayres’s specific suggestion is that Democrats propose to tie abolition of the Electoral College to an amendment that rescinds the 22nd Amendment’s two-term limit, thus allowing Trump to run in a 2028 election that would be decided by the national popular vote. “Small states simply won’t surrender the disproportionate influence the Electoral College affords them,” Ayes writes. But, Ayres continues, if Trump “embraced a compromise amendment that allowed him to run for another term, the legislators of deeply pro-Trump states such as North Dakota—which Trump won by 36 points this past November—just might fall in line.”
Ayres concludes by acknowledging that giving Trump “another bite at the apple” might feel “unthinkable for many.” But “Democrats would be wise to ponder the unthinkable,” Ayres argues, since "improving the long-term structure of our constitutional system by eliminating the electoral college might be worth the short-term risk—especially if we continue to have faith in the American people and majority rule.”
I cannot decide if I am more annoyed with Ayres for thinking this is insightful or smart, or with The Washington Post for reaching the same conclusion. The 22nd Amendment’s bar to a third Trump term might be the best thing the Democratic Party has going for it right now—the knowledge that, as bad as things are and will get, an unambiguous constitutional rule will boot him from office 45 months from now. The idea of voluntarily sacrificing this security in exchange for long-term good-government reform is the kind of academic thinking I could not parody if I tried. It is roughly analogous to getting your opponents to vote for gun safety legislation by handing them a gun and the chance to legally shoot you with it.
Also absent from Ayres’s analysis is the fact that lawmakers passed the 22nd Amendment for the exact scenario this country faces right now. For more than a century after the founding, presidents generally abided by an unwritten two-term limit that, as President Thomas Jefferson wrote in 1805, prevented the president from becoming a de facto king, and prevented voters from habitually reelecting one “after he becomes a dotard”—a person too old and senile to effectively govern.
But after World War II, during which President Franklin D. Roosevelt ran for (and won) a third and fourth term in office, lawmakers moved to formalize this rule. As Ohio Representative Edward McCowen explained at the time, the 22nd Amendment was essential to preventing a “dictatorship or some totalitarian form of government from arising”; similarly, Tennessee Representative John Jennings, Jr. said that it would ensure “that we shall never have a dictator in this land.” Given that Trump has compared himself to a king of late, and that people in his orbit are publicly discussing the possibility of him running again, and the fact that he is a checked-out, rapidly decompensating 78-year-old man who appears to have handed the keys to the government to the stupidest people on the planet, I am not sure that the 22nd Amendment’s guarantee is something Democrats should be putting on the negotiating table right now.
Reading between the lines a little, it seems that Ayres’s 5D chess bet is that Trump, a lame duck who is in the process of crashing the global economy, would lose if he ran in 2028, and that by offering this deal, Democrats would get to have their cake and eat it too. But as President Hillary Clinton would doubtless ruefully attest, pundits’ confident predictions about Trump’s electability have been, historically speaking, worthless garbage. Trump won the popular vote—for the first time in three tries—less than four months ago, and if he knew he could run for a third term, he could spend the next 3.5 years using the power of his office to tilt the odds in his favor. If Congress makes “voting for a Democrat” a federal crime by 2027, I am not sure the absence of the Electoral College in 2028 is going to matter much.
Ayres is of course right that abolishing the Electoral College, a vestige of slavery that has delivered the White House to the popular vote loser in two of the previous seven elections, would be good for democracy. But if the price of securing it is something that would be much, much worse for democracy, that price is not worth paying, let alone offering, unbidden, to your proudly anti-democracy opponents. Floating a “constitutional compromise” that would give an otherwise-ineligible aspiring autocrat the means to remain in power does not make you savvy. It makes you a mark, and the only person in the room who doesn’t know it.
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It’s fucking stupid. Fuck that and fuck him.
Trump and the sycophants supporting him are what 5 U.S.C. 3331 emphasizes that every public servant must "support and defend support and defend the Constitution of the United States against," i.e., our Constitution's "enemies, foreign and domestic." Six SCOTUS justices in Trump v. United States violated our Constitution to help Trump violate our Constitution.
"We the People of the United States" created our Constitution and constituted federal government to "establish Justice" and "provide for [our] common defence, promote [our] general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." We all need to act accordingly.
We need to set aside mere partisan politics and other petty differences and unite to save our nation from someone who threatens us all. We would do well to emulate Thomas Jefferson, who declared in 1801 "every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists." (https://constitutioncenter.org/the-constitution/historic-document-library/detail/thomas-jefferson-first-inaugural-address-1801).
We are all Americans, and our Constitution was written and ratified to protect us from tyrants like Trump. As James Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.”
Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because" the "same [executive] or [legislature] should enact tyrannical laws to execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of the [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”
As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power should be separate and distinct.” The Framers devoted considerable effort to limiting and separating powers. That is exactly why every state and federal Constitution separates powers among three distinct co-equal branches. Again and again in the past two months, Trump has usurped the powers of legislators, judges, juries and even the sovereign people, themselves (in the First Amendment). Now, Trump is openly plotting to usurp the power of states (regarding the election of the president and vice president).